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Uncertainty over politically sensitive criminal trials

by Sunday Express
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Mohalenyane Phakela

THE uncertainty over the recruitment of foreign judges to try politically sensitive cases involving politicians, serving and former members of the security agencies has caused the postponement of the case in which the former Minister of Defence and National Security, Tšeliso Mokhosi, and others are accused of murdering Police Constable (PC) Mokalekale Khetheng in 2016.

Messrs Mokhosi, former police commissioner Molahlehi Letsoepa and four other police officers were supposed to stand trial for PC Khetheng’s murder but the case was on Thursday postponed to 18 June for mention. This was after the Mr Mokhosi’s lawyer, Advocate Qhalehang Letsika told the High Court that there was a likelihood that his client could appeal against the recent Constitutional Court ruling which cleared the way for the recruitment of foreign judges to try this and other criminal cases that are deemed to be politically sensitive.

The Constitutional Court on 2 May 2019 dismissed an application that had been brought before it by Mr Mokhosi, former army commander, Lieutenant General Tlali Kamoli, and 14 others seeking the nullification of the recruitment of foreign judges to try their criminal cases.

The other 14 applicants in the constitutional suit were Major Pitso Ramoepane, 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 filed their application on 15 February 2019. They wanted the appointment of the foreign judges by the Judicial Service Commission (JSC) to be nullified on the grounds that it is unconstitutional. They argued that the JSC did not act independently as it was coerced by the government into recruiting foreign judges who would do the government’s bidding by ensuring that they are found guilty of the charges brought against them. They argued that the JSC should have been left alone to independently recruit judges.

In delivering its judgement, 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 seeking the assistance of foreign judges to try the cases.

“This court is of the view that when the government, following the recommendations of the Justice Mpaphi Phumaphi Commission, approached its development partners and Southern African Development Community (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,” Justice Molete stated.

“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.

“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 judgement cleared the way for the resumption of trials including that of Messrs Mokhosi and others which had been put on hold pending the outcome of the constitutional challenge of the recruitment of foreign judges.

However, it could take longer before the trials resume after Adv Letsika on Thursday told the Acting High Court judge, Justice Polo Banyane, that he needed to engage his clients over a possible appeal against the 2 May 2019 Constitutional Court ruling.

Adv Letsika was appearing on behalf of Messrs Mokhosi, Letsoepa and four other police officers were supposed to stand trial for PC Khetheng’s murder.

Adv Letsika said the PC Khetheng murder trial may have to be postponed because there was a possibility that stall because Messrs Mokhosi, Lt-Gen Kamoli and others may lodge an appeal against the Constitutional Court ruling.

“This (PC Khetheng murder trial) is one of the cases classified as ‘high profile’ which has to be tried by foreign judges and my clients and others lost a case in which they were challenging the manner in which the said foreign judges were appointed,” Adv Letsika said.

“We had a discussion as their legal representatives and we are yet to meet with all the clients, some of whom are accused in other matters similar to this one. We will take instructions from them as to whether or not the accused persons wish to take the matter (of their application against the recruitment of foreign judges to try their criminal cases) further. Their decision may stay the proceedings of this trial. We ask that this matter be postponed to 18 June 2019,” Adv Letsika said.

Justice Banyane then postponed the PC Khetheng murder case to 18 June for mention.

PC Khetheng went missing after he was arrested by his colleagues at a traditional feast in Sebothoane, Leribe, on 25 March 2016. His body was exhumed a year later at a mass grave in the Lepereng cemetery on the outskirts of Maseru. The cemetery is a burial site for unclaimed corpses.

Mr Mokhosi, the former Defence minister in the Pakalitha Mosisili-led seven parties’ coalition which ruled from 2015 to 2017, has been charged with PC Khetheng’s murder.

He was charged alongside 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 Letsoepa is in exile while the four officers are still detained in the Maseru Maximum Security Prison.

Mr Mokhosi was released on bail on 4 September 2018 and two days later he issued a statement accusing the police of forcing him to confess to killing PC Khetheng while being interrogated.

Mr Mokhosi also accused the police of torturing him and coercing him to make a false statement before the magistrates’ court about the circumstances surrounding PC Khetheng’s death.

Mr Mokhosi said he never knew nor ever met PC Khetheng and therefore he had no motive to kill him.

He said he was arrested and assaulted by the police in an attempt to get him to confess that he and Lesotho Congress of Democracy leader Mothetjoa Metsing had killed PC Khetheng.

Zimbabwean judge, Justice Charles Hungwe is the first foreign judges to be appointed to preside over the criminal cases involving Mr Mokhosi and others.

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 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.

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