Mohalenyane Phakela

THE trial of 10 soldiers accused of murdering three civilians in 2017 have started before Botswana Judge Onkemetse Tshosa in the High Court.

Proceedings began with the accused being asked to plead to the charges. Justice Tshosa entered “not guilty” pleas for all 10 suspects after they stubbornly refused to plead to the charges. Instead of either pleading guilty or not guilty, each of them said, “the court does not have jurisdiction to hear this case”.

The 10 soldiers are Brigadier Rapele Mphaki, Major Pitso Ramoepane, Sergeant Lekhooa Moepi, Captain Mahlehle Moeletsi, Lance Corporal Mahlomola Makhoali and Privates Nthatakane Motanyane, Motšoane Machai, Liphapang Sefako, Nemase Faso and Tieho Tikiso.

They allegedly strangled Lekhoele Noko, Molise Pakela and Khothatso Makibinyane at Setibing in rural Maseru on 16 May 2017 and dumped them in the Mohale Dam.

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.

They were initially supposed to stand trial on 7 December 2020 but the matter was postponed to allow the Constitutional Court bench of Justices Tšeliso Monapathi, Moroke Mokhesi and Keketso Moahloli to rule on their application for a permanent stay of proceedings.

The 10 are part of a group of serving and former members of the security agencies including former army commander, Lieutenant General (Lt-Gen) Tlali Kamoli, who, in October 2020, petitioned the Constitutional Court to have their trials permanently stopped on the grounds that their trials had taken too long to begin in apparent violation of their rights to speedy trials.

They also want two foreign judges engaged by the government and judiciary to preside over their numerous murder and attempted murder trials to be declared unfit to preside over their cases. Justice Tshosa and his Zimbabwean counterpart, Justice Charles Hungwe are the two foreign judges who were recruited in 2019 with the help of SADC and the European Union to preside over the high-profile trials of politicians, serving and former members of the security agencies.

These include the murder and treason trial of Lt-Gen Kamoli and others. However, the trials have so far failed to take off due to numerous court litigations by the accused to permanently stop them.

Even when they have lost their applications in the High Court, they have either turned to the Constitutional Court or Court of Appeal thus causing numerous delays to the trials.

But Justice Tshosa has decided to proceed with the trials. A fortnight ago, he ruled that he will proceed with the trial of the 10 soldiers on the grounds that even though they have a pending constitutional application, the same court has not issued any interim order to stop the trials from proceeding.

The trial had now been pencilled for last Tuesday but this did not happen after the soldiers’ lawyers argued that the proceedings should be stopped because the prosecution had allegedly not furnished them with some of the witness statements. The soldiers are represented by Attorney Qhalehang Letsika and Advocates Karabo Mohau (KC), Letuka Molati and Napo Mafaesa.

The lawyers argued that the prosecution had only given them 25 witness statements yet the witness list stated that there would be 55 witnesses.

However, the lead prosecutor, South African Adv Shaun Abrahams counter-argued that the accused were furnished with the indictment together with the witness list in February 2020. He said they should have raised any concerns then or during the pre-trial conference on 12 March 2021 instead of doing so now when the trial was about to begin.

Justice Tshosa then ordered that the state should furnish them with the outstanding statements to enable the trial to begin the next day.

The defence lawyers also attempted to stop the trial on the grounds that Justice Tshosa could not hear the matter due to the pending constitutional application for him to be declared unfit to preside over their trial.

It is not clear if they were eventually furnished with the witness statements but the trial eventually did get underway on Wednesday with Adv Abrahams reading the charge sheet.

In reply, each of the accused sang a similar tune when they were asked to plead, saying the judge did not have the jurisdiction to try them.

Justice Tshosa maintained his composure throughout. At some point, the judge even asked Major Ramoepane is he understood what they meant when they said he lacked the jurisdiction to try them.

Major Ramoepane said their lawyers would explain to the court why they had pleaded in that manner instead of pleading guilty or not guilty.

Justice Tshosa informed the accused and their lawyers that he would enter a plea of “not guilty” on their behalf.

When proceedings resumed on Friday, Adv Abrahams read the opening statement wherein he indicated that the crown will present evidence from the police who investigated the case as well as confessions from some of the accused.

He said medical experts will also be summoned to give post-mortem and DNA analysis reports.

He said all this will begin on 6 April 2021- the date set by Justice Tshosa for the resumption of the trial.

Before that, the soldiers’ lawyers had again attempted to derail proceedings by arguing that Justice Tshosa did not have the jurisdiction to try them.

“Mr Ramoepane pleaded that the court had no jurisdiction but the court went on to enter a plea of ‘not guilty’ on his behalf.

“The court cannot change the plea of lack of jurisdiction to not guilty. The court has to make informed decisions and therefore has to inquire about the reasons why such a plea of no jurisdiction was entered,” Adv Mohau argued on behalf of his client.

Mr Letsika added: “my clients were very clear when they consistently pleaded that this court has no jurisdiction. Section 162 of the Criminal Procedure and Evidence Act gives the accused options of how to plead to charges. The provisions of section 168 (of the Criminal Procedure and Evidence Act) bind the court to satisfy itself whether it has jurisdiction or not. That means an inquiry has to follow.

“The court has to consider all explanations to make a determination on its jurisdiction.”

Adv Abrahams counter-argued that the defence had not followed the proper procedure in moving the lack of jurisdiction applications and therefore their applications had to be dismissed.

“The counsels have a duty to assist the court and not to frustrate it. The approach by the defence is not noble. Section 160 speaks on a notice of motion which should have been filed before the pleas were taken. His Lordship was within his right to enter the ‘not guilty’ pleas on behalf of the accused. They cannot raise issue of jurisdiction in non-compliance with section 160,” Adv Abrahams argued.

Justice Tshosa dismissed the applications and said the trial would proceed as planned.

“This court believes that the filing of applications must be done properly and on time before the judges and their assessors. This enables the court to familiarise itself with the application before going into court. It is unacceptable for an application to be filed when the court is proceeding. It is for this reason that the court declines to accept the applications.

“On the issue of jurisdiction, section 162 of the Criminal Procedure and Evidence Act lists the issue of jurisdiction as one of the pleas that accused can opt for. The accused were within their rights to plead lack of jurisdiction. However, in doing so, they had to comply with other provisions of the Criminal Procedure and Evidence Act. The pertinent provision is section 160. It is on record and not disputed that the accused did not comply with 160. It is mandatory that a notice has to be handed over to the Director of Public Prosecutions.

“This court finds that defendants failed to comply with section 160. Therefore, the applications of defence and accused are rejected and dismissed,” Justice Tshosa ruled.

Section 160 of the Criminal Procedure and Evidence Act states that, “when the accused intends to apply to have a charge quashed, or to plead any of the pleas except the plea of guilty or not guilty, he shall give reasonable notice to the Director of Public Prosecutions or her representative if the trial is before the High Court”.