Judgement day for Mokhosi, Kamoli
Mohalenyane Phakela / Nat Molomo
THE Constitutional Court will on 12 April 2019 deliver judgement in a case in which the former Minister of Defence and National Security, Tšeliso Mokhosi, former army commander, Lieutenant General Tlali Kamoli, and 14 others are seeking the nullification of the appointment of foreign judges to preside over their criminal trials for murder and attempted murder.
Mr Mokhosi, Lt-Gen Kamoli and 14 others filed an urgent court application on 15 February 2019 seeking the nullification of the recruitment of foreign judges of foreign judges to preside over theirs and other cases involving serving and former members of the security agencies.
The other 14 applicants are Major Pitso Ramoepane, Thabo Tšukulu, Mothibeli Mofolo, Mabitle Matona, Rapele Mphaki, Pitso Ramoepana, Lekhooa Moepi, Mahlele Moeletsi, Mahlomola Makhoali, Nthatakane Motanyane, Motšoane Machai, Liphapang Sefako, Nemase Faso, Tieho Tikiso and Litekanyo Nyakane.
They want the appointment of the foreign judges by the Judicial Service Commission (JSC) to be nullified on the grounds that it is unconstitutional.
In terms of the interim relief, they want Justice Hungwe and the other foreign judges to be interdicted and prevented from commencing criminal proceedings until the finalisation of their main court application.
The case was heard from Wednesday to Friday by three Constitutional Court judges, justices Thamsanqa Nomngcongo (presiding judge), Lebohang Molete and Moroke Mokhesi.
On Friday, the case resumed with both sides continuing their arguments over the admissibility of the suspended Chief Justice Nthomeng Majara’s affidavit which was included by the applicants in their court papers.
Justice Majara had prepared the affidavit in support of her own case in which she is challenging her suspension and proposed impeachment for gross misconduct including the failure to clear the huge backlog of cases at the courts.
In her affidavit, Justice Majara states that she advised the government against involving itself in the recruitment of foreign judges.
“The government initiated efforts to recruit foreign judges without following the Constitution. I warned them that the constitution did not support their conduct as the recruitment falls within the mandate of the JSC and not the executive arm of state. I advised that they should leave the issue of the recruitment with the JSC,” Justice Majara states in her affidavit.
On Wednesday, the judges had questioned the relevance of the applicants’ lawyers inclusion of Justice Majara’s affidavit to support their application.
And on Friday, the applicants’ lawyer, King Counsel Advocate Karabo Mohau, argued that they were right to include Justice Majara’s affidavit because it was relevant to their case.
“The affidavit of the Chief Justice is not hearsay, even the respondents and the Attorney-General (Advocate Haae Phoofolo) have referred to it saying she has expressed an opinion and he is not pushing for it to be expunged from the records. We submit that the respondents cannot have their cake and eat it,” Adv Mohau argued.
Adv Mohau said the affidavit of the Chief Justice objected to the government unconstitutionally involving itself in the recruitment of the foreign judges.
“The respondents involved the Southern African Development Community (SADC) in the process whereas that is the function of the Judicial Service Commission (JSC).
“In terms of Section 132 of the Constitution it is the duty of JSC to use its own devices how, and when to recruit judges. The best assistance that SADC could have offered was to provide money not to recruit.
“What SADC might have done might be in good intention, but taking away the sacrosanct powers given to the JSC by the constitution, they took away the powers of the JSC and that should not be allowed,” Adv Mohau argued.
In his affidavit, the Attorney General Adv Phoofolo states that the government had approached SADC to assist with the recruitment of judges but that was done with the consent of Justice Majara.
“The government approached SADC to second judges from jurisdictions that are similar to Lesotho to assist in adjudicating over the cases. Before submitting this request, the Prime Minister (Thomas Thabane), in a meeting which I was present, asked the Justice and Foreign Affairs ministers to consult the Chief Justice (Majara) concerning the recruitment of the foreign judges.
“The input of all stakeholders such as the JSC, the Ministry of Justice, the Lesotho Defence Force and others was solicited. Justice Majara ultimately endorsed the recruitment of foreign judges and I relayed the report to the Prime Minister. This endorsement, as Justice Majara had said, was subject to the JSC approving the individual foreign judges.
“The proposal to SADC was approved as it was intended to ensure and provide independent, impartial and highly experienced foreign judges who would objectively try those cases; to clear the backlog of criminal cases in the High Court; and assist Lesotho implement the outstanding obligations arising from the SADC’s Phumaphi Commission. SADC agreed that the judges in question would be sourced by SADC member states whose legal systems are compatible with Lesotho’s. Such countries are Namibia, South Africa, Swaziland and Botswana.
“After all, the JSC met and resolved to task the (assistant) registrar of the High Court, Mr Makamane, concerning the process of recruitment of experienced and qualified personnel,” part of Adv Phoofolo’s affidavit states.
For his part, Adv Maqakachane stressed that it was wrong for applicants to include Justice Majara’s affidavit saying it did not establish any facts that were relevant to the court application by Mr Mokhosi and others.
“There is no clear evidence that the executive interfered with the JSC in the appointment of foreign judges. The court should reject the application,” Adv Maqakachane further said.
Justice Nomngcongo then deferred judgement to 12 April 2019.
“We will deliver judgement on 12 April which will also be on whether the issue of Chief Justice’s affidavit being part of the records,” Justice Nomngcongo ordered.
The government wants the foreign judges to try criminal cases involving politicians as well as past and serving members of the security agencies. Lt-Gen Kamoli faces a murder charge stemming from the 30 August 2014 killing of Police Sub-Inspector, Mokheseng Ramahloko.
Sub-Inspector Ramahloko was shot and killed by soldiers during the attempted coup of 30 August 2014 at the police headquarters in Maseru. The soldiers who allegedly acted on the instructions of the then army commander, Lt-Gen Kamoli, also raided several other police stations in Maseru and seized an assortment of weapons.
Lt-Gen Kamoli also faces 14 counts of attempted murder in connection with the 27 January 2014 simultaneous bombings of the Moshoeshoe II homes of First Lady Maesaiah Thabane and the Ha Abia residence of former police commissioner, Khothatso Tšooana.
He is charged alongside Major Ramoepane, Captain Litekanyo Nyakane, Sergeant Heqoa Malefane and Corporal Mohlalefi Seitlheko.
Major Ramoepane faces a separate murder charge in connection with the 5 September 2017 assassination of army commander Lt-Gen Khoantle Motšomotšo.
Mr Mokhosi faces charges of murdering Police Constable (PC) Mokalekale Khetheng. He is charged along with former police commissioner Molahlehi Letsoepa and four other police officers.
The other officers are Senior Superintendent Thabo Tšukulu, Superintendent Mothibeli Mofolo, Inspector Mabitle Matona and Police Constable Haleokoe Taasoane who are all currently on suspension from the police service.
Messrs Mokhosi and Letsoepa are in exile while the four officers are still detained at the Maseru Maximum Security Prison.
There are 10 soldiers who stand accused of strangling Lekhoele Noko, Molise Pakela and Khothatso Makibinyane at Setibing in rural Maseru on 16 May 2017 and dumped their bodies in the Mohale Dam.
The 10 soldiers are Brigadier Rapele Mphaki, Sergeant Lekhooa Moepi, Captain Mahlehle Moeletsi, Lance Corporal Mahlomola Makhoali, Private Nthatakane Motanyane, Motšoane Machai, Tieho Tikiso, Pitso Ramoepana, Liphapang Sefako and Nemase Faso.
The soldiers allegedly kidnapped and murdered the three men after the trio had just been released from police custody where they were detained in connection with a shooting incident that occurred at the Maseru border gate on 13 May 2017.