Mohalenyane Phakela
FORMER army commander Tlali Kamoli has filed an application to stop the High Court from trying him and his co-accused for attempted murder. The charges are in connection with the 27 January 2014 simultaneous bombings of the homes of former First Lady ‘Maesaiah Thabane and former police commissioner Khothatso Tšooana.
The matter is currently before Zimbabwean Judge Charles Hungwe. However, Lieutenant General (Lt-Gen) Kamoli argues he and his co-accused ought to be tried in the magistrates’ court instead.
His co-accused are Major Pitso Ramoepane, Captain Litekanyo Nyakane, Sergeant Malefane Heqoa and Corporal Mohlalefi Seitlheko.
All the accused face 17 charges of attempted murder, aggravated assault and causing the risk of injury or death. Lt-Gen Kamoli faces additional charges of issuing illegal orders and the obstruction of justice.
When the indictment was read out to them on Thursday, they all pleaded that the High Court did not have jurisdiction to try them.
Their lawyers argued that their clients should instead be before the magistrates’ court which has powers to try attempted murder cases.
Lt-Gen Kamoli is represented by Advocate Letuka Molati, Major Ramoepane by Adv Karabo Mohau, Captain Nyakane and Sergeant Heqoa by Adv Napo Mafaesa and Corporal Seitlheko by Adv Hopolang Nathane.
Adv Molati argued that there was no legal justification for the Director of Public Prosecutions (DPP), Adv Hlalefang Motinyane’s decision to bring the case to the High Court when the magistrates’ court had jurisdiction to hear the matter.
“We do not have the benefit of the DPP’s reasons for this case to be tried by the High Court,” Adv Molati argued.
“Section 90(1)(e) of the Criminal Procedure and Evidence Act (CP&E) states that unless it is a case of treason, murder or sedition, it should be tried by a magistrate’s court. Any magistrate can preside over an attempted murder case. There is no reason why the powers of another court should be usurped by another.
“They (prosecution) may argue that we are before you in terms of section 144 of the CP&E. However, section 168 of the same law provides that the court should determine jurisdiction first. There should be jurisdictional facts.”
Adv Molati said he did not understand how Lt-Gen Kamoli and others’ case was before the High Court when another attempted murder trial of the four soldiers accused of the July 2016 attempted murder of former Lesotho Times and Sunday Express editor, Lloyd Mutungamiri, was before the Maseru Magistrates’ Court. The four are Brigadier Rapele Mphaki, Colonels Khutlang Mochesane, Nyatso Tšoeunyane and Maribe Nathane.
Other defence lawyers echoed Adv Molati’s sentiments, adding that magistrates were competent to preside over the matter.
On his part, lead prosecutor, South African Adv Shaun Abrahams, argued that the DPP had powers to decide which court should prosecute a particular case. He also argued that the High Court had unlimited jurisdiction hence it could hear the matter.
“In terms of section 168 of the CP&E, His Lordship has deemed it appropriate that we proceed in this fashion. It is upon them to provide evidence why this court does not have jurisdiction.
“They are challenging the DPP’s powers and discretion vested in her by the constitution and section 5 of the CP&E which allows the DPP to prosecute before any forum and on any charges. They have failed to prove that the DPP acted irrationally.
“Section 119 of the constitution clothes this court with unlimited jurisdiction. The accused’s right to a fair trial will not be prejudiced if their case proceeds before the High Court,” Adv Abrahams argued.
After hearing both sides’ submissions, Justice Hungwe reserved judgement to 15 June 2021.
Lt-Gen Kamoli, who is accused of various crimes including murder and treason, has previously filed several unsuccessful applications to stop the prosecutions. He has filed the applications on his own or with fellow accused serving and former members of the security agencies.
Judges, the prosecution, lawyers and analysts have all accused the former commander and others of making frivolous court applications to delay their trials. Analysts have argued that the applications are meant to delay the trials as long as possible in the hope that a new government sympathetic to Lt-Gen Kamoli and other high-profile suspects will come to power after next year’s polls and throw out their cases. They are also said to be counting on the enactment of the National Peace and Unity Act to provide for the establishment of a National Peace and Unity Commission empowered to grant them amnesty provided they testify truthfully, disclose their crimes in full and show remorse.
The bill was crafted more than three weeks ago by Justice and Law Minister Lekhetho Rakuoane.
The proposed National Peace and Unity Commission shall comprise of four members appointed by the prime minister on the recommendation of a selection panel. It will be empowered to hear “evidence” from suspects accused of politically motivated crimes and gross human rights violations including those whose cases are already before the courts.
But the suspects like Lt-Gen Kamoli and others would have to first apply to appear before the Commission. Their court trials will then be suspended pending the decision of the Commission if it agrees to hear their pleas. If they are granted amnesty, their trials would be completely halted and they would be set free.
Constitutional law experts like former Justice and Law Minister Nqosa Mahao have said the bill was unconstitutional as it sought to usurp the DPP’s sole constitutional prerogative to determine criminal prosecutions.
Victims of human rights abuses and their families have also slammed the bill on the grounds that it will enable high-profile criminals to dodge prosecution and punishment for their crimes.
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