Storm over non-arrival of foreign judges

• even the Crown is not amused by the resultant delays in hearing cases

 Nat Molomo\ Mohalenyane Phakela

LAWYERS for different clients in the high-profile criminal cases involving politicians and members of the security agencies have bemoaned the continued absence of foreign judges to preside over the cases.

The lawyers say the numerous postponements of the cases was not only frustrating but also prejudiced their clients who were being denied justice.

Even the prosecution is not amused by the ongoing delays and have suggested that local judges should preside over some of the cases.

The Minister of Justice and Correctional Services, Mokhele Moletsane, is on record saying that the decision to engage foreign judges was taken to protect local judges from possible victimisation and backlash from trying the “politically sensitive cases”.

Mr Moletsane said while the local judges were competent enough to try the cases, the government and the Southern African Development Community (SADC) still felt it necessary to engage foreign judges because the cases in question were politically sensitive. He further said that the verdicts of the foreign judges were less likely to be viewed as biased.

“It has never been about the incompetency of local judges as the government believes they are capable enough to preside over the cases.

“However, the government and SADC agreed that due to the nature of the cases which are said to be politically sensitive, it would be best to source foreign judges because local judges are at risk of being victimised for the verdicts they would give for the cases,” Mr Moletsane said.

And despite the assurances of foreign judges coming in, only Zimbabwean judge Justice Charles Hungwe has so far showed up and he was sworn in on 15 January by the Acting Chief Justice, ‘Maseforo Mahase.

But even he has since left the country. Contacted for comment, the public relations officer of the judiciary, ‘Mabohlokoa Mapikitla, told the Sunday Express that arrangements for the arrival of the foreign judges were at an advanced stage.

“Logistics pertaining to the arrival of the five foreign judges, including Justice Hungwe who was here last month are at an advanced stage. However, we cannot give a definite date of their arrival but it will be soon,” Ms Mapikitla said.

Meanwhile, the pre-trial conference in the case of 10 soldiers accused of murdering the three men had to be called off on Friday as a result of Justice Hungwe’s absence.

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

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.

However, on Friday, the pre-trial conference did not proceed due to the non-availability of Justice Hungwe.

Another case that failed to take off on Friday due to the non-availability of foreign judges is that of former Defence minister Tšeliso Mokhosi, former commissioner of police, Molahlehi Letsoepa and others who stand accused of murdering Police Constable (PC) Mokalekale Khetheng in 2016.

Even the Crown Counsel Advocate ‘Naki Nku joined the defence lawyer Attorney Qhalehang Letsika in expressing frustration at the delay in the commencement of the trial.

In his address to Justice Teboho Moiloa on Friday, Attorney Letsika said, “previously in January when we appeared before you, it was agreed that this matter would proceed to the pre-trial conference (today) before an allocated (foreign) judge”.

“We asked who the judges were but we were not told (and) everything is clouded in secrecy. It is very strange,” Attorney Letsika remarked.

Justice Moiloa then inquired from Adv Nku whether or not the case would proceed and the latter replied by saying that, “if there is a judge, we will proceed”.

“The problem is the bench (the judges). The crown is ready to proceed even before a local judge. I am also frustrated because we are supposed to proceed to pre-trial conference, but we cannot,” Adv Nku said.

Justice Moiloa then asked Adv Nku what the office of the Registrar of the High Court had to say about the matter and Adv Nku replied by saying that, “I cannot speak for the office of the Registrar because I am ready to proceed before any local judge”.

Attorney Letsika then told the court that, “I wrote to the office of the Registrar of the High Court and the response is that this a high-profile case and it will be allocated to a judge from a foreign country”.

“I wanted to know who the judge was. We have sought to access the court record but that has been denied. We are told that these files are kept in the office of the Chief Justice and we are told that we can access the record when the judge is here. The accused persons have joined forces with others in a constitutional case (challenging the recruitment of foreign judges),” Attorney Letsika said.

This was in reference to the 15 February 2019 High Court application by Mr Mokhosi, former army commander Tlali Kamoli and 14 other former members of different security agencies for the reversal of the appointment of foreign judges to handle their criminal cases.

The other 14 applicants are 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.

They want the appointment of the foreign judges by the Judicial Service Commission (JSC) to be nullified on the grounds that it is unconstitutional.

In terms of the interim relief, they want Justice Hungwe and the other foreign judges to be interdicted and prevented from commencing criminal proceedings until the finalisation of their main court application.

“The first respondent (Justice Hungwe) and/or any foreign judge who has been appointed to preside over criminal proceedings… (should) be interdicted and prevented from convening and commencing criminal proceedings pending finalisation of these proceedings,” part of the application states.

“These criminal trials are stayed (deferred) until finalisation of the final relief (nullification of foreign judges’ appointments).

“It is declared that the appointment of the first respondent or any foreign judges specifically to preside over criminal proceedings was made in violation of the national constitution and is therefore null and void and of no force and effect.

“The recommendation by the Judicial Service Commission to appoint foreign judges to His Majesty the King (Letsie III) and the subsequent appointment of the first respondent (Justice Hungwe) or any foreign judge, pursuant to the initiatives of the executive, violates the provisions of section 132 (8) of the constitution which provides that in the exercise of its functions under the constitution, the Judicial Service Commission shall not be subject to the direction or control of any other person or authority.”

The applicants further state that the appointment of foreign judges violates “provisions of section 12 (1) of the Constitution which guarantees the right to fair trial, section 118 (3) of the constitution which guarantees the independence of the judiciary and are therefore null and void and of no force and effect”.

In his affidavit submitted as part of the application, Lt-Gen Kamoli said, “I aver that I appeared (last month) before a foreign judge (Justice Charles Hungwe) whose particulars I do not know. The Honourable judge indicated in an open court that he has learned about my attitude”.

“In this regard, I shall request the copy of the record to be transcribed as the exchange between us showed a judge who is not independent but has prejudged matters and accused persons he is yet to try.

“I aver that similar position applies to his colleagues who were appointed under similar circumstances. I believe that I am accurate in that analysis. I was surprised by this particular judge’s attitude towards me when I requested clarity over simple things such as why the (Assistant) High Registrar (Staford Sharite) was allowed to give me documents when my counsel was denied that opportunity,” Lt-Gen Kamoli states.

Mr Mokhosi also states in his affidavit that foreign judges had been appointed to deliver verdict in line with the government’s desire to have them jailed.

“I wish to indicate that we object to the government made up of politicians like myself initiating the appointment of judges because we suspect that…the government is desirous to have certain outcomes.

“In particular I am clear in mind that the government the government wants us to be convicted at all costs and receive the harshest possible sentences.

“The participation of the Attorney General, the legal adviser of the executive and the Director of Public Prosecutions, the prosecuting authority in our criminal trials, in the recruitment of (foreign) judges gives a reasonable impression that certain judges are picked to achieve certain desired criminal trial outcomes.”

Lt-Gen Kamoli faces a murder charge stemming from the 30 August 2014 killing of Police Sub-Inspector, Mokheseng Ramahloko.

Sub-Inspector Ramahloko was shot and killed by soldiers during the attempted coup of 30 August 2014 at the police headquarters in Maseru. The soldiers who allegedly acted on the instructions of the then army commander, Lt-Gen Kamoli, also raided several other police stations in Maseru and seized an assortment of weapons.

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.

He is charged alongside Major Ramoepane, Captain Litekanyo Nyakane, Sergeant Heqoa Malefane and Corporal Mohlalefi Seitlheko.

Major Ramoepane faces a separate murder charge in connection with the 5 September 2017 assassination of army commander Lt-Gen Khoantle Motšomotšo.