• reject pro deo lawyer, demand postponement of trial,
• allegedly blow money meant for legal fees on Christmas shopping.

Mohalenyane Phakela

FIVE murder-accused soldiers accused of killing three Mafeteng civilians in 2012, on Friday came up with another bizarre argument as they continued with their war of attrition aimed at frustrating their trial.

During their court appearance, the five who have already rejected a pro deo (state-sponsored) lawyer, pleaded with Botswana Judge Onkemetse Tshosa to postpone their trial to April 2021 to give them time to save money to hire lawyers of their choice.

They argued that they had run out of money as they had prioritised buying their children clothes and other Christmas gifts over paying for legal representation.

They also repeated their old claim of being denied adequate food by prison authorities in contravention of their rights.

Their hunger claims and rejection of pro deo lawyers appear to be part of what the prosecution views as a well-calculated ploy to frustrate their trials by the foreign judges who were recruited by the Judicial Service Commission (JSC) with the help of government, SADC and the European Union (EU) to try all high-profile cases involving politicians, serving and former members of the security agencies.

The five soldiers are Captain Litekanyo Nyakane, Lance Corporals Khauhelo Makoae and Sebilo Sebilo as well as 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.

Their trial failed to take off and was subsequently postponed to February 2021. This after they appeared without legal representation. Advocate Vuyani ‘Mone, who had been appointed to represent them on a pro deo basis, withdrew his representation after they rejected him.

Adv ‘Mone was appointed as the soldiers’ pro deo lawyer on 27 November 2020. This after the soldiers’ original lawyers withdrew their representation in protest over what they said was the inhuman treatment of their clients in prison. The lawyers are Advocates Zwelakhe Mda, Napo Mafaesa, Mkhantji Kao and Lintle Tuke.

The lawyers are among 10 lawyers representing various clients including former army commander, Lieutenant General (Lt-Gen) Tlali Kamoli, who recently wrote to Chief Justice Sakoane Sakoane demanding that he acts on what they alleged were violations of their clients’ rights by the prison authorities.

Justice Sakoane has since dismissed their demands and warned them against engaging in any conduct likely to bring the courts into disrepute.

He also said the lawyers’ right to represent suspects was not absolute and that they could withdraw their services if they so wished. But they could not do so in manner that amounts to scandalising the courts, he said. He further said that the trials of their clients would go ahead without them and pro deo lawyers could still be appointed to represent the accused.

But it appears the lawyers and their clients are still determined to fight a war of attrition with the state to stop their trials from proceeding.

On Friday, Adv ‘Mone, who had been appointed pro deo lawyer for the five soldiers, told the court that he had no choice but withdraw from the case after they rejected him.

He said the five had alleged that he had been roped in to ensure their conviction.

“In no uncertain terms, the accused have rejected me and I gathered that it appears to them that I am being used to secure their conviction,” Adv ‘Mone said.

“In fear of being labelled a tool for injustice, I wish to inform the court that I shall not participate any further in these proceedings.

“I understand that lawyers are ministers in the temple of justice. However, I cannot ethically be in a position to proceed.”

When asked by Justice Tshosa if they had secured new lawyers to represent them, Captain Nyakane digressed to speak about how he had allegedly been brought to court on an “empty stomach” by prison authorities who he said had not given him any food.

He claimed that he and others had constantly been denied adequate food by the authorities at the Maseru Central Correctional Institution (MCCI) for the past two years.

Captain Nyakane said he therefore wanted the lead prosecutor, Adv Mosoeunyane Masiphole, to intervene and “rescue” them.

“I ask Adv Masiphole to look into the issue of us being starved in prison,” Captain Nyakane said, adding, “I have found him to be a principled person and I am confident that he will prosecute my case fairly”.

“I have not eaten since morning. Every time I come here, I would not have eaten and this has been happening for the past two years. When I ask the (prison) authorities about it, I am told that there is no food.

“I am saying this in their presence because I know they are going to say that I ate whereas they only offer us soft porridge and porridge crust for breakfast. I am still looking this fit because I am a soldier and a soldier is supposed to look fit,” Captain Nyakane told the court.

Fellow accused soldier, Lance Corporal Makoae added that for a long time they had complained about being fed rotten porridge but the issue had still not been addressed.

He and other accused soldiers also asked that they be given until April 2021 to find new lawyers. They claimed that they had run out of money after spending it all on Christmas shopping for their children.

Therefore, their trial should be postponed to April to give them time to save up for legal fees, they said.

“My Lord, may this matter be postponed to either March or April. When we talk about acquiring a new lawyer we are talking about money and since it is December, I have to buy my children Christmas clothes. Children do not care whether one is in jail or not and all they want are new clothes. At least from January up to April, I will be able to save up for legal fees,” Private Tšepe pleaded.

However, Adv Masiphole asked that the soldiers be given until the end of next month to secure lawyers, failing which they should be tried without any legal representation.

“The crown has been very patient in this matter. The accused have tried at all costs to deny themselves the right to a fair trial. They want to waive their right to legal representation. Since I took over the prosecution of this matter in October 2019, the court has been patient and listened to the tactical plays brought forth by the accused.

“To avoid a miscarriage of justice, may this matter be postponed to February 2021 for hearing. From today until the end of January, they should find counsel who will be available and ready to proceed. The Crown is more than ready to proceed with or without the defence counsel.

“As for the complaints about hunger, I cannot comment about that issue because it has been raised by the accused in their Constitutional Court application which is pending. I cannot comment about an issue which is before another court,” Adv Masiphole said.

Justice Tshosa who had patiently listened to the state and accused’s submissions then set down new trial dates from 8 to 12 February 2021 to give the accused soldiers time to secure lawyers of their choice.

“This matter is postponed to 8 until 12 February 2021. The accused are to utilise this time to get lawyers of their choice. If they fail to secure lawyers by the scheduled dates, then in the spirit of Speedy Court Trial Act and section 12 of the Constitution, the trial will proceed without lawyers,” Justice Tshosa ordered.

The soldiers are among 27 members of the security agencies including former army commander, Lieutenant General (Lt-Gen) Tlali Kamoli, who have filed a constitutional application to permanently stop their trials.

In that constitutional application which Adv Masiphole alluded to, the five and others argue that they are being denied food by prison authorities among other alleged violations of their rights. (See comment on Page 8).

Superintendent Limpho Lebitsa, who filed opposing papers on behalf of the Lesotho Correctional Service (LCS), has denied that the soldiers and others are being starved in prison.

He instead accuses them of refusing food offered by the correctional service in favour of that brought to them by their families. He said they even throw the food into the rubbish bins just to spite the LCS officers.

“The mainstay for their relief (to be released) is that they are denied nutritious and sufficient foods from their home. The true state of affairs is that applicants hardly eat food from the prison. They take the food and throw it into the bin in a manner that is meant to undermine the management of the institution.

“They essentially prefer to eat foods from their homesteads and we have an open-door policy to allow their families to provide meals for them. The only time they were forced to eat the meals prepared at our facility was during the time when we adhered to strict restrictions of the lockdown,” Supt Lebitsa states in his court papers.

However, in remarks that seemingly lend credence to the suspects’ claims, Law and Justice principal secretary Lebeko Sello, told the Lesotho Times that Lesotho’s prison inmates are facing an acute hunger crisis which has seen some of them presenting with hunger-related diseases at LCS clinics in various parts of the country.

Mr Sello said despite receiving the biggest chunk of the law ministry’s budget and spending 30 percent of it on food, the LCS was still unable to adequately feed the inmates.

“Our nationwide tour also covered the correctional services in the country,” Mr Sello said last week.

However, Supt Lebitsa has insisted that the inmates are well-fed. He said although they could not regularly provide meat to prisoners, “there is an agreed standard menu across all prisons in Lesotho and the issue of food scarcity does not arise as we still manage to feed the standard menu”.

A prison source who spoke on condition of anonymity insisted that the high-profile inmates were well-fed because their cases were in the spotlight.

If at all, the high-profile suspects had been among those presenting with hunger-related illnesses, by now they would have submitted medical records to the courts to prove that they were being starved in detention, the source said.