Mohalenyane Phakela
ACTING Chief Justice ‘Maseforo Mahase has come under fire from state and defence lawyers for delaying the hearing of former army commander Lieutenant General (Lt-Gen) Tlali Kamoli and other high-profile suspects’ constitutional application for a permanent stay of their trials.
Lt-Gen Kamoli and other suspects, including soldiers and police officers, stand accused of various murder and attempted murder cases including the June 2015 murder of former army commander Lt-Gen Maaparankoe Mahao and treason against the first government of former Prime Minister Thomas Thabane.
They filed a Constitutional Court application to permanently stop their trials on the grounds that they had been in custody for far too long since they were arrested in 2017 and the delays in trying them are an infringement of their constitutional rights to speedy and fair trials.
Their bizarre latest application is despite that they are the ones entirely responsible for the delays of their trials. Lt-Gen Kamoli and company have resorted to every trick to try and forestall their trials. Their tactics have included applications for recusal of judges and spurious arguments about how these were appointed.
All in all, 29 applicants have filed the latest application to try and halt their trials completely. Of these, 25 are soldiers and the rest are police officers. Lt-Gen Kamoli, Major Pitso Ramoepana, Captain Litekanyo Nyakane and Senior Superintendent Thabo Tšukulu are the best known of the applicants.
The connotational application to permanently stay their trials was supposed to be heard last Monday but it could not proceed because Justice Mahase had not allocated judges to hear the matter.
That then led to the postponement of the murder trial of Captain Nyakane and four other soldiers accused of murdering three civilians in Mafeteng in 2012. Captain Nyakane is co-accused alongside Lance Corporal Khauhelo Makoae, Lance Corporal Sebilo Sebilo, Privates Tšepo Tlakeli and Thebe Tšepe.
They are accused of murdering Thabang Mosole, Monyane Matsie and Pakiso Ntala Letatabe at Ha Motanyane, Mafeteng in 2012. The case is before Botswana Judge Onkemetse Tshosa.
The trial was supposed to start on Tuesday but it could not go ahead after the Assistant Registrar of the High Court, Adv Edward Maiketso, told the court that there was a pending constitutional application to stop it and other trials of serving and former members of the security agencies.
Adv Maiketso said the constitutional application was supposed to be heard on Monday but it failed to proceed because Justice Mahase was yet to allocate judges to hear the matter.
“Justice Mahase said she is having a meeting with the judges on 16 October 2020 and will only be able to select a panel of judges to hear the matter on 19 October,” Adv Maiketso said.
This did not go down well with Advocate Christopher Lephuthing, who is opposing the constitutional application on behalf of the Director of Public Prosecutions (DPP), Adv Hlalefang Motinyane.
“This failure to appoint a panel the judges to hear the matter has created inability on our part,” Adv Lephuthing said.
“I believe the Acting Chief Justice should be approached again and be made aware of the problems this has caused. The aim is to have the hearing expedited so that we can get a ruling soonest in order to avoid compromising the Speedy Courts Trial Act (which calls for cases to be tried in the shortest possible time).”
Adv Zwelakhe Mda, who represents some of the murder-accused soldiers, was even more scathing of what he described as Justice Mahase’s “shocking” and “controversial” conduct.
“It is a very controversial exercise that the Acting Chief Justice has to meet judges to discuss the matter
“I am wondering about the propriety of that exercise,” Adv Mda said.
Justice Tshosa then postponed the murder trial to 16 November 2020 pending the outcome of Captain Nyakane, Lt-Gen Kamoli and others’ constitutional application.