Mohalenyane Phakela
TREASON and murder-accused former army commander, Lieutenant General Tlali Kamoli, and three other soldiers have demanded to be tried separately from former Deputy Prime Minister Mothetjoa Metsing and Development Planning Minister Selibe Mochoboroane.
Lt-Gen Kamoli’s co-accused soldiers are Captain Litekanyo Nyakane, Lance Corporals Motloheloa Ntsane and Leutsoa Motsieloa. They accused of treason and murder alongside Messrs Metsing and Mochoboroane. However, the two politicians are yet to be joined to the cases due to their pending High Court application to stop the Director of Public Prosecutions, (DPP) Advocate Hlalefang Motinyane, from having them prosecuted.
They argue that DPP Motinyane’s move to join them to the cases contravenes the Criminal Procedure and Evidence Act which states that suspects cannot be charged in the High Court before being first brought to the magistrates’ court and remanded.
They also accuse Adv Motinyane of ignoring clause 10 of the October 2018 SADC-brokered government-opposition agreement to defer the trials of all politicians until after the implementation of the multi-sector reforms which were recommended by SADC in 2016.
The Constitutional Court on 12 November 2020 upheld its November 2018 decision to nullify clause 10 on the grounds that it could only become legally binding if it was domesticated into local law through an act of parliament.
The treason charges are in connection with the 30 August 2014 coup attempt against the first government of former Prime Minister Thomas Thabane.
The much-postponed trial was supposed to have started on Tuesday but it failed to kick-off due to Messrs Metsing and Mochoboroane’s 25 November 2020 High Court application.
Chief Justice Sakoane Sakoane granted them an interim order barring DPP Motinyane from charging them until their application to avoid trial is finalised.
Therefore, on Tuesday, the two politicians could not be joined to the case. The trial failed to proceed without them due to the prosecution’s insistence that Messrs Metsing and Mochoboroane should be joined to the case.
Botswana Judge Onkemetse Tshosa postponed the matter to 11 December 2020 pending the outcome of Messrs Metsing and Mochoboroane’s High Court application which will determine whether or not they will be joined to the treason and murder trials.
Before the postponement, Lt-Gen Kamoli and fellow accused soldiers’ lawyers had petitioned Justice Tshosa to try them separately from the two politicians.
The soldiers, who have been detained at the Maseru Central Correctional Institution since their arrest in 2017, argued that it was unfair to postpone the trial because of Messrs Metsing and Mochoboroane’s application which had nothing to do with them.
“My clients have never agreed to this matter being held in abeyance because of another matter which has nothing to do with them,” argued Adv Kabelo Letuka who represents Captain Nyakane and Lance Corporal Leutsoa Motsieloa.
“It is unfair for the accused persons to wait for people who are not party to these proceedings. We object to the issue of postponement on account of an application which has nothing to do with these accused,” Adv Letuka added.
Fellow defence lawyers, Adv Shakhane (who represents Lt-Gen Kamoli) and Adv Lepeli Molapo (who represents Lance Corporal Ntsane) expressed similar sentiments.
“I do not understand why this matter cannot proceed in isolation from that of the two others whom the Crown seeks to join to the trial,” argued Adv Shakhane.
On his part, Adv Molapo said: “We have been patient with the prosecution and this has come back to bite us. We may have to wait until 2023 if we don’t object to the postponement which is based on issues which have nothing with our clients”.
However, Crown Counsel Adv Naki Nku objected, saying it was important for the soldiers and the politicians to be tried together.
“We feel these people should be tried together to avoid the miscarriage of justice,” Adv Nku said.
Justice Tshosa then postponed the matter to 11 December 2020 pending the outcome of Messrs Metsing and Mochoboroane’s latest application.
“Since the (High Court) order barring the Crown from joining the other two is an interim order, my view is that we wait for it to either be discharged or confirmed. Then we can take it from there. This matter is postponed to 11 December 2020,” Justice Tshosa ordered. (See