Mohalenyane Phakela

MURDER-accused, Senior Superintendent Thabo Tšukulu, will know on Wednesday whether or not he will be released on bail from the Maseru Maximum Prison where he has been detained for the past two years while awaiting trial.

Acting High Court Judge, Kabelo Kenneth Lebotse, heard Snr Supt Tšukulu’s bail application on Thursday and reserved judgement to 11 September 2019.

Snr Supt Tšukulu stands accused of murdering Police Constable Mokalekale Khetheng in March 2016. He is accused alongside former Defence and National Security Minister, Tšeliso Mokhosi, former Commissioner of Police, Molahlehi Letsoepa and three other police officers. The three other officers are Superintendent Mothibeli Mofolo, Inspector Mabitle Matona and Police Constable Haleokoe Taasoane who are all currently on suspension from the police service.

Mr Mokhosi, who is deputy leader of the opposition Lesotho Congress for Democracy (LCD), is out on bail while Mr Letsoepa remains at large after having fled the country in 2017. The three other police officers are in detention along with Snr Supt Tšukulu who now wants to be freed on bail on the grounds that he has been detained for too long and not adequately prepare for his trial while in prison.

During the Thursday bail hearing, Snr Supt Tšukulu’s lawyer, Advocate Karabo Mohau King’s Counsel (KC), told the court that his client had been prejudiced by the state’s failure to try him within a reasonable period of time from his arrest in accordance with the national constitution. Adv Mohau also said that his client could not effectively prepare for his trial while in prison and therefore needed to be granted bail.

“The petitioner (Snr Supt Tšukulu) cannot prepare for his trial because he is denied access to his personal diary through which he will be able to recall his whereabouts of the date on which he is accused of killing the deceased,” Adv Mohau KC said.

“Section 6 (5) of the Constitution also provides that any detained person shall be tried within a reasonable time and when that does not happen, he shall be released either conditionally or unconditionally.

“We are alive to the fact that in terms of Section 9 of Criminal Procedure and Evidence Act, we have a duty to persuade this court that all these factors justify his release on bail pending his trial. We submit that it is in the interests of justice that he is released to allow him to prepare for his trial.

“The petitioner has been serving in the police service for 26 years and therefore stands to lose heavily financially if he absconds. It is also in the hands of the court to ensure that he does not abscond by setting regular remand sessions.”

However, the Director of Public Prosecutions (DPP)’s lawyer, Adv Motene Rafoneke, argued that there were no exceptional circumstances to justify the granting of bail to enable Snr Supt Tšukulu to prepare for trial from home.

“The petitioner has cited the delay of his trial and inability to prepare for the trial from prison as grounds for him to be granted bail. However, the circumstances raised must be unusual and not ordinary (to justify the bail). He (Snr Supt Tšukulu) is not saying it is unusual for inmates to be treated in that fashion of having less access to reading materials.

“If he (Snr Supt Tšukulu) is prohibited by the Lesotho Correctional Service (LCS) rules, he may challenge that in court and say they prejudice his right. He does not also elaborate how that prohibits him from briefing his counsel. Whatever he says he needs to take care of is being attended by his counsel.

“The DPP cannot be blamed for the delay in commencing the trial because the DPP has always been ready to proceed. The court found it fit to recruit a foreign judge to hear the matter. When the court was ready, the petitioner lodged an application which has stayed his trial from commencing,” Adv Rafoneke argued.

Justice Lebotse then reserved judgement to 11 September 2019, saying he “needed time to apply his mind on the strong submissions by both counsels”.

Snr Supt Tšukulu is one of the 32 murder-accused soldiers and police officers who have petitioned the court to have the government to foot their legal bills.