High Court judge, Justice Semapo Peete yesterday ruled that charges preferred against Corporal Montsuoe Motseko by the Lesotho Defence Force (LDF), were unlawful.
Corporal Motseko is being detained at the Maseru Maximum Security Prison for “false” statements he allegedly made in the High Court against Major Sechele Bulane and Lieutenant-Colonel Thato Phaila.
By making the statements against the officers on 27 July 2015, Corporal Motseko “contravened Section 78 (b) of the LDF Act”, his charge sheet reads.
For this indictment, Corporal Motseko is supposed to appear before the Court Martial on 28 December 2015.
However, Justice Peete yesterday told LDF lawyer Advocate Leholi Motikoe that he should, by 3:30pm today, furnish the court with the army’s decision on whether the Court Martial hearing would proceed.
In his urgent application filed before the High Court on Tuesday this week, Corporal Motseko had prayed that his detention be declared unlawful “ab initio”.
Corporal Motseko also wanted charges preferred against him on 9 December 2015 to be set aside, arguing they amounted to “double jeopardy” as he had already been slapped with similar charges on 4 August 2015.
His lawyer, Advocate Tumisang Mosotho, who filed the application, also wanted the court to order the LDF to unconditionally release Corporal Motseko and never interfere with his “right to liberty”.
According to court papers, Corporal Motseko was charged with making false statements against Major Bulane and Lt-Col Phaila whilst in detention on 4 August 2015.
“In making a complaint before the High Court of Lesotho relating to his detention in the Military Detention Centre (Maseru Maximum Prison), he knowingly and falsely stated, in his founding affidavit under Paragraph 12 thereof, that Major Sechele said ‘…I should not bother wasting money on lawyers and if I could be cooperative and testify against a few individuals like Mahao and Motoa, they will never touch me again. I gave him my word that I would do as he ordered’.
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“Furthermore, he knowingly and falsely stated, in the same founding affidavit under paragraph 16 thereof, that Lt-Col Phaila said ‘…I denied myself a golden opportunity by refusing to implicate other soldiers on the alleged mutiny’”, read the charges.
Corporal Motseko was initially arrested on 25 June this year but later released allegedly after agreeing to implicate the now late former army commander, Maaparankoe Mahao and Brigadier Poqa Motoa, in a foiled mutiny.
However, he was rearrested after he allegedly revealed he only agreed to incriminate the duo after being promised amnesty and also because he feared being tortured while in detention.
He had been among 23 soldiers arrested and detained between May and June this year for allegedly plotting to overthrow the army command.
The soldiers are facing trial by a Court Martial and their case continues on 1 February 2016.
Yesterday, Justice Peete ruled that a Court Martial is part of the judiciary and an affidavit is evidence and cannot be criminalised.
Justice Peete asked the lawyers whether one could be charged for giving evidence under oath.
The judge also expressed surprise that Corporal Motseko was being charged for an offence he allegedly committed in the High Court.
“So the offense was committed in the High Court and before the High Court as per the charge sheet?
“You should remember judicial privileges. Statements made during proceedings of the High Court are privileged. A charge under Section 78 of the LDF Act of 1996 would not stand on the face of judicial privileges.
“Go and advice your clients on judicial privileges, which covered Corporal Motseko when he made the statement in the High Court. So the concept of judicial privilege invalidates a charge under Section 78. You are duty-bound to advice the Court Martial prosecution on judicial privileges,” said Justice Peete.
“In view of the law, the statements were not made extra-judiciary. The charges against Corporal Motseko cannot stand so you should go and advice the LDF and by tomorrow afternoon at about 15:30hrs, you should appear before this court with the decision taken by the military on this ruling.”