THREE soldiers who are accused of mutiny in relation to the events that led to the assassination of army commander, Lieutenant General Khoantle Motšomotšo, will stand trial before the court martial after the court martial judge advocate, Justice Winston Churchill Maqutu, on Tuesday ruled that the court martial had the legal jurisdiction to try them.
Justice Maqutu ruled that the court martial should proceed with the trial as it will only deal with mutiny charges while the civilian courts deal with the different charge of murder.
This followed an application by the accused soldiers’ lawyers who had argued that the court martial had no jurisdiction to try the suspects since they were already being tried by the civilian (magistrates’) court for the murder of Lt-Gen Motšomotšo.
The court martial convened for the first time on Monday and its sessions will run throughout the week.
The three soldiers are Major Pitso Ramoepane, Captains Boiketsiso Fonane and Litekanyo Nyakane. They stand accused of mutiny in relation to the events that led to the 5 September 2017 assassination of Lt-Gen Motšomotšo at his Ratjomose Barracks offices in Maseru.
Two senior army officers, Brigadier Bulane Sechele and Colonel Tefo Hashatsi were also killed during the incident.
Major Ramoepane stands accused of acting in concert with Brig Sechele and Col Hashatsi by “jointly and unlawfully forming an intention to violently resist lawful authority in the LDF by confronting and attacking Lt-Gen Motšomotšo with the intention of resisting his directive that three army officers should be taken to Police Headquarters, thereby committing the said mutiny offence”.
Lt-Gen Motšomotšo had directed that Corporal Sebolai, Private Ratšiu and Private Matsosobe taken to the Police Headquarters for interrogation in connection with the 2014 murder of Ms Lisebo Tang near the residence of former army commander Lt-Gen Tlali Kamoli.
The directive was in line with the Southern African Development Community (SADC) recommendations that all soldiers suspected of serious criminal offences must be suspended and prosecuted in line with international best practices.
Captains Fonane and Nyakane are jointly charged with “inciting persons to object to the LDF Act of 1996 and take part in a mutiny”.
“(The two captains) attended a meeting at the official quarters of Colonel Hashatsi at Makoanyane Barracks on or about the 4th of September 2017 with, among others, Brig Sechele and Col Hashatsi and to encourage Corporal Sebolai, Private Ratšiu and Private Matsoso to refuse orders of the deputy commander to go to police headquarters, thereby committing the said offence,” part of the charge sheet states.
Alternatively, Major Ramoepane and Captains Fonane and Nyakane are jointly charged with the failure to report an intended mutiny involving the use of force contrary to the LDF Act of 1996 as they allegedly knew that a mutiny was planned by Brig Sechele and Col Hashatsi.
The trio are also alternatively charged with the “failure to use utmost endeavours to suppress or prevent a mutiny from taking place contrary to Section 49 of the LDF Act No.4 of 1996”.
Captain Nyakane faces another separate charge in that on or about 9 September 2017 “(he) unlawfully and intentionally had in his possession the following items: 245RM.6211 9mm pistol, 33 9mm rounds, two 9mm loaded magazines, MP5 rifle with six loaded magazines, 132 MP5, 2Xm32 hand grenades; all these being arms and ammunition and property of Lesotho Defense Force”.
In their first appearance before the court martial since the mutiny charges were levelled against them in November 2017, the trio pleaded not guilty to all the charges.
Major Ramoepane is represented by King’s Counsel, Karabo Mohau who is assisted by Advocate Kabelo Letuka. Captain Fonane is represented by Advocate Letuka Molati, while Captain Litekanyo Nyakane is represented by King’s Counsel Motiea Teele.
The prosecution team is made up of Attorney Koili Ndebele, Advocates Thulo Hoeane, Rethabile Setlojoane and Major Masehle.
On Monday, Adv Mohau had argued that the military tribunal’s powers to try and charge his client fell off when the Director of Public Prosecutions (DPP) charged Major Ramoepane with murder of Lt-Ge Motšomotšo in a civilian court.
“Before the accused pleads, we object to the jurisdiction of this court to try him,” Adv Mohau said, adding, “On 14 September 2017, the accused was remanded in custody by the civilian court upon a charge issued by the DPP on 12 September 2017 under the provisions of Penal Code Section”.
He said the legislation was clear that in a case where military personnel are suspected to have committed treason, murder and rape, such charges must be dealt with by the civilian courts and not a military tribunal.
He said his client had already been charged with murder in the civilian court and therefore the military tribunal lacked jurisdiction to prosecute Major Ramoepane as the suspected mutiny plot resulted in the murder of Lt-Gen Motšomotšo.
Adv Teele KC concurred with Adv Mohau.
For his part, Adv Molati submitted that Captain Fonane should immediately be placed on open arrest as the latter’s detention was contrary to the military law which states that a suspect can only be detained for 42 days after which the army should provide written justification of the continued detention. He said the army had not provided the justification in relation to his client who had been in detention for almost eight months.
“It can only be fair if the accused proceeds to answer charges against him while he is not in custody because the military law has not been complied with. We submit that this court is within its parameters to order that he be put on open arrest because military authorities have not complied with military law. He nearly died while in detention. He was hospitalised and a private doctor was denied access to him,” Adv Molati said.
However, Attorney Ndebele who spoke on behalf of the prosecution, said the defence’s objection was misguided as the issue surrounding the murder of Lt-Gen Motšomotšo was being dealt with by the civilian courts while court martial only dealt with the mutiny charges.
“The military court has exclusive jurisdiction to deal with a charge of mutiny while the other court is dealing with murder charges,” Attorney Ndebele said.
He also said the court martial had previously ruled that it does not have the powers to place anyone under open or closed arrest as that was the sole responsibility of the unit commander empowered by the LDF Act.
Delivering his judgement on Tuesday, Justice Maqutu, said the court martial should proceed as it dealt with a different issue of mutiny while the civilian court would deal with the murder charge.
Justice Maqutu added that the court martial could not be stopped on the basis of the uncertain civilian proceedings as the magistrates’ court had not even decided whether or not the murder case would proceed.
“The ruling is that the (proceedings in the civilian court) does not stop the tribunal (court martial) from proceeding with the charges that resulted in the murder.
The army is different in its scope of practice. The case before the magistrate is merely at the stage of investigation. It would be a denial of justice if the military court does not continue with this case because of the fate (of the case in the civilian court) we don’t even know.”
“The murder case does not involve the command of the LDF and it will be dealt with by the civilian courts,” Justice Maqutu ruled.
He also ruled that the court martial had no powers to place Captain Fonane on open arrest.