Nat Molomo/ Mohalenyane Phakela

MURDER-ACCUSED former Defence minister Tšeliso Mokhosi and former army commander, Tlali Kamoli, have relaunched their bid to stop the state from recruiting foreign judges to preside over theirs as well as other trials of politicians, serving and former members of the security agencies.

Messrs Mokhosi, Kamoli and 14 others relaunched their bid in the Court of Appeal after their initial 15 February 2019 Constitutional Court application was dismissed on 2 May.

Their latest apex court appeal comes barely a fortnight after the first of the foreign judges, Zimbabwean Justice Charles Hungwe returned to Lesotho and set 6 August 2019 as the date for the commencement of the pre-trial conferences for the cases involving politicians, serving and former members of the security agencies.

However, the trials may not begin on 6 August due to the appeal by Messrs Mokhosi, Kamoli and others. This is because the Court of Appeal will only resume its sittings in October and only then will it preside over their appeal against the recruitment of the foreign judges.

Messrs Mokhosi and Kamoli are among the politicians and serving and former members of the security agencies who stand accused of murder and other crimes that were committed during the tenure of the former seven parties’ coalition that was headed by the now retired leader of the Democratic Congress, Pakalitha Mosisili.

The duo filed their application together with 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.

The 16, who lost their case on 2 May, have approached the Court of Appeal, arguing that the Constitutional Court misdirected itself when it dismissed their initial application.

In their High Court application, they wanted the recruitment of foreign judges stopped allegedly because the government hijacked the process which ought to have been conducted by the Judicial Service Commission (JSC). They argued that the judiciary should have been let to do its own recruitment independently but the government interfered with the process so that it could secure judges who would convict them and hand down harsh sentences.

However, the Constitutional Court bench made up of Justices Thamsanqa Nomngcongo, Lebohang Molete and Moroke Mokhesi dismissed the application saying the government acted within the constitution in the recruitment of the foreign judges.

“The executive may have given assistance as they are enjoined to do by Section 118(3) of the Constitution. If Mr Mokhosi considers the involvement of the executive in sourcing financial and human resource to preside over his case, this is not inimical to the constitution, as the executive was doing what the constitution requires them to do.

“It is common knowledge that judges in this jurisdiction are wallowing under a heavy load of cases due to understaffing. When the government sourced financial and human resources to deal with the cases which are potentially complex and time-consuming, potentially presenting a real possibility of disrupting the normal schedules of the judges in this jurisdiction it was acting in terms of the constitution.

“This court is of the view that when the government approached its development partners and SADC counterparts regarding funding for the prosecution of cases involving the applicants, the government was acting constitutionally in terms of Section 118 (3) of the constitution to enable the courts to deal effectively with the said cases.

“A smooth and undisrupted prosecution of these cases is of vital importance to ensure their prompt disposal. The result is that the application is dismissed,” the Constitutional Court said in its 2 May judgement.

In their latest application filed in the Court of Appeal, Messrs Mokhosi, Kamoli and others maintain that the government unduly interfered in the recruitment of foreign judges. They argue that “The Court a quo (Constitutional Court) erred and misdirected itself in holding that there was no (executive) interference with the exercise of powers of the Judicial Service Commission (JSC) by the executive”.

“There was evidence that the executive actively initiated appointment of foreign judges to the exclusion of the Chief Justice and the JSC. The identification of judges for appointment by His Majesty the King is, in terms of section 120 (2) of the constitution, the function of the JSC and not of the executive.

“It is the Chief Justice who advises the King in terms of section 120 (5) of the Constitution, whether the state of business in the High Court requires the appointment of acting judges to deal with such business, and judges appointed on that basis are appointed by the King acting on the advice the JSC,” the applicants state in their apex court papers.

Lt-Gen Kamoli faces a murder charge in connection with the killing of Police Sub-Inspector Mokheseng Ramahloko at the Police Headquarters in Maseru during the attempted coup of 30 August 2014.

Lt-Gen Kamoli is charged alongside Captain Litekanyo Nyakane, Lance Corporal Motloheloa Ntsane and Lance Corporal Leutsoa Motsieloa.

It never rains but pours for Lt-Gen Kamoli as he was on 17 January 2019, added onto the list of suspects who stand accused of murdering former army commander, Maaparankoe Mahao.

Initially only eight soldiers were charged with Lt-Gen Mahao’s murder are these are Captain Litekanyo Nyakane, Captain Haleo Makara, Sergeant Lekhooa Moepi, Sergeant Motsamai Fako, Corporal Marasi ‘Moleli, Corporal Motšoane Machai, Corporal Mohlalefi Seitlheko and Corporal Tšitso Ramoholi.

The list of suspects has since increased to 10 after the addition of Lt-Gen Kamoli and the former National Security Services (NSS) Director and head of Military Intelligence, Tumo Lekhooa.

Mr Lekhooa has not attended any of the court sessions after he fled the country last year.

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.

In this case Lt-Gen Kamoli is charged alongside Major Pitso Ramoepane, Captain Litekanyo Nyakane, Sergeant Heqoa Malefane and Corporal Mohlalefi Seitlheko.

The former army commander has been languishing in remand prison since his arrest in October 2017.

Mr Mokhosi faces charges of murdering 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.

Mr Mokhosi is out on bail and Mr Letsoepa is in exile since fleeing the country in 2017. The four officers are detained at the Maseru Maximum Security Prison.