- as Appeal Court dismisses their appeal against the recruitment of foreign judges to try them
Mohalenyane Phakela
MURDER-ACCUSED former army commander Tlali Kamoli, former Defence and National security minister Tšeliso Mokhosi and 14 others will finally have their day in court after losing their six-month bid to stop the state from recruiting foreign judges to try their cases.
This after the Court of Appeal on Friday upheld the 2 May 2019 Constitutional Court ruling against their application to stop the recruitment of the foreign judges to try their cases.
Friday’s apex court verdict clears the way for the criminal trials of Lt-Gen Kamoli, Mokhosi and other politicians as well as serving and former members of the security agencies to begin tomorrow in the High Court.
Delivering judgement on Friday, Court of Appeal president Justice Kananelo Mosito said that the High Court, sitting as the Constitutional Court on 2 May 2019, correctly ruled against Messrs Mokhosi, Kamoli and 14 others on the grounds that their argument that the government usurped the Judicial Service Commission (JSC)’s role of recruiting foreign judges lacked evidence.
“The High Court correctly concluded that the assertion that the executive fought to manipulate the appointment process of the (foreign) judges to preside in the high-profile cases is not supported by any admissible evidence,” Justice Mosito said while reading out the apex court verdict on Friday.
“I have therefore come to the conclusion that the appeal must fail. As for the costs (of the lawsuit) the government conceded that it was not proper in constitutional matters that costs be ordered to private litigants who seek to ventilate constitutional rights. Therefore, there shall not be an order to costs. The appeal is dismissed.”
The dismissal of the case brings to an end the long-drawn out bid to stop the recruitment of foreign judges that was first brought to the Constitutional Court on 15 February by Messrs Mokhosi, Kamoli and 14 others.
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 wanted the recruitment of the foreign judges on the grounds that it was unconstitutional because the government allegedly played a leading role in choosing judges it felt would convict them and hand them harsh sentences. They argued that the JSC should have been left to do its own recruitment independently of government.
However, the Constitutional Court bench comprising of High Court Justices Thamsanqa Nomngcongo, Lebohang Molete and Moroke Mokhesi dismissed the application on 2 May this year, saying the government acted within the constitution in seeking foreign judges’ assistance.
The 16 subsequently petitioned the Court of Appeal on 17 June 2019, arguing that the Constitutional Court misdirected itself when it dismissed their initial application. Their appeal was heard 24 July 2019 by the Court of Appeal bench comprising of the Justice Mosito as the presiding judge, justices Petrus Damaseb (from Namibia), Semapo Peete (Lesotho), Moses Chinhengo and Tafuma Mtshiya (both from Zimbabwe).
Zimbabwean Judge Justice Charles Hungwe, Prime Minister Thomas Thabane, The Minister of Law, constitutional Affairs and Human Rights, the JSC, the Director of Public Prosecutions and the attorney general were the first to sixth respondents respectively. Justice Hungwe was sued after he became the first of the foreign judges to be sworn in to preside over the high profile trials.
In the apex court, the applicants’ lawyer, Advocate Karabo Mohau, argued that the recruitment of foreign judges should have been left to the discretion of the chief justice.
“We submit that the decision to seek additional judges was not initiated by the chief justice although that duty remains exclusively her right in terms of Section 125 of the national constitution.
“She (the now suspended Chief Justice Nthomeng Majara) could have advised the King if she felt she needed additional manpower to hear the eight cases that are said to be high profile. It is further said in the attorney general’s affidavit that the Chief Justice eventually endorsed the recruitment of foreign judges, which means she was not the one who initiated the process.
“There is a document attached to the papers which shows that executive together with Southern African Development Community (SADC) member states agreed to recruit foreign judges and the Judicial Service Commission, which by law has the mandate to recruit judges, only did the vetting. The process was fundamentally flawed as JSC was hamstrung on how to identify judges,” Adv Mohau argued.
However, the respondents’ lawyer, Advocate Tekane Maqakachane countered by saying that the applicants’ submissions lacked evidence.
“There is no evidence to establish facts upon which this application was made as the inferences levelled by applicants are not based on any facts. The document the applicants are talking about is a conceptual note which maps out and was communicated to all stakeholders including the JSC.
“Furthermore, the applicants wrote to the High Court registrar on 11 January 2019 enquiring about foreign judges as proof that they were in the dark regarding the recruitment process. However, in the same letter, they make inferences that the judges were handpicked by the executive to deliver desired outcomes which include harsh sentences.
“The government stopped at diplomatic arrangement stage to ensure that SADC member states would avail judges and the JSC was left to do the recruitment process on its own, meaning there was not interference,” argued Adv Maqakachane.
After hearing the arguments, the apex court reserved judgement to Friday 2 August when it ruled against the applicants.
After the dismissal of the appeal by the Court of Appeal, Lt-Gen Kamoli will now stand trial for the 2015 murder of former army commander Lt-Gen Maaparankoe Mahao.
Lt-Gen Kamoli also 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 has been charged with the murder of 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 detained at the Maseru Maximum Security Prison.
There are also 10 soldiers who stand accused of murdering Lekhoele Noko, Molise Pakela and Khothatso Makibinyane at Setibing, Maseru on 16 May 2017 and dumping 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.