TWENTY-THREE detained soldiers accused of planning to topple the Lesotho Defence Force (LDF) command on Tuesday filed an urgent application before the High Court seeking release and permanent immunity from prosecution.
In the application, the soldiers, who are remanded at Maseru Maximum Security Prison save for Brigadier Thoso Mareka who is under house arrest, argue that the Court Martial proceedings against them were unlawful and in flagrance of Southern African Development Community’s (SADC) decision to put it on hold until the commission of inquiry has concluded its probe.
The army officers include Brigadier Mareka, Brigadier Motoa, Colonel Stemere, Colonel Kolisang, Major Makhetha, Captain Chaka, Second Lieutenant Mohasi, Sergeant Mokhobo, Sergeant Semakale, Sergeant Lekhabunyane, Corporal Mokhoro, Corporal Letsilane, Corporal Lipoto, Corporal Manaka, Corporal Mohatlane, Corporal Chele, Corporal Motseko, Lance Corporal Jobo, Lance Corporal Molefi, Lance Corporal Makhooane, Private Pama, Private Bolofo and Private Ralitlemo.
They were arrested by other members of the LDF between May and June this year.
The soldiers have cited LDF commander, Lieutenant General Tlali Kamoli, Defence and National Security Minister, Tšeliso Mokhosi, Court Martial, President – Court Martial, Major General Mojalefa Letsoela, Chairman of the Commission of Enquiry Justice Mpaphi Phumaphi, Commission of Enquiry and Attorney General Tšokolo Makhethe as first to eighth respondents respectively.
The army officers seek an order that: “The 2nd respondent’s (Minister Mohosi) decision to establish Court Martial to try the applicants for alleged contravention of sections 48 (1) (a) read with sections 48 (2)and 103(1) of Lesotho Defence Force Act 1996, be reviewed and set aside.
“The 2nd respondent’s convening order for establishing Court Martial to try the applicants for alleged contravention of sections 48 (1) (a) read with sections 48 (2) and 103(1) of Lesotho Defence Force Act 1996, be declared as null and void.”
The Court Martial was assembled by Mr Mokhosi through a “convening order” he issued on 13 August 2015.
The detained soldiers also seek an order that: “The respondents’ decision to charge the applicants pursuant to the charge sheet issued on the 7th August 2015 be reviewed and set aside.
“The respondents’ charge sheet charging the applicants for alleged contravention of sections 48 (1) (a) read with sections 48 (2) and 103(1) of Lesotho Defence Force Act 1996 be declared as null and void.”
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They want the High Court to prevent the army authorities from charging them for the alleged offences until the Commission of Inquiry established by SADC completes its mandate.
The army officers also want the court to order their unconditional release from the Maseru Maximum Security Prison.
“It be and is hereby declared that pending the outcome Commission of Inquiry, the applicants are free from prosecution and are entitled to have their freedoms and liberties and are entitled to an unconditional release from both close and open arrest,” read part of the notice of motion.
In the alternative, they want the 1st respondent’s (Lt Gen Kamoli) directive issued on the 10th July 2015 pursuant to terms of Regulation 11 (2) of the Defence Force (Discipline) Regulations No. 29 of 1998 to be declared null and void.
The directive was extending their stay in detention until the convening of the Court Martial.
In persuading the court to deal with their case with haste, one of their lawyers, Advocate Christopher Lephuthing, attached a certificate of urgency in the application.
In his certificate of urgency, Advocate Lephuthing states: “The applicants have been arrested and remain detained at the Maximum Security Prison by members of the Lesotho Defence Force under close arrest in the absence of exceptional circumstances and jurisdictional facts which legalise such assumed close arrest.
“The applicants – save for 1st applicant (Brigadier Thoriso Mareka) – are in an invidious position of remaining under close arrest without due process of the law and submits that their fundamental rights to a fair trial will be violated if the detention is allowed to continue pending investigations of the Commission of Inquiry envisaged in the government gazette of the 21st August 2015.”
Brigadier Mareka is under open arrest after the Court of Appeal on 7 August 2015 confirmed the High Court decision which ruled that he should be kept out of prison due to ill-health.
In support of the application, Brigadier Mareka made an affidavit, part of which reads: “It is necessary to indicate at first blush, the death of (Brigadier Maaparankoe) Mahao raised principal concern with regard to security in the kingdom to such an extent that an Extra-Ordinary Double Troika Summit was convened at (sic) Pretoria, South Africa on the 3rd July 2015.
“It was in that summit where the Lesotho government undertook not to proceed with the arrest and detentions of the members of the Lesotho Defence Force pending equitable measures designed to avoid irreparable harm so that the rule of law may take its course by way of the orderly determination of issues through the independent SADC Commission of Inquiry.”
He said the summit resolved that Lesotho should “put on hold the Court Martial processes to allow for the independent SADC Commission of Inquiry as set out in the terms of reference tasked to launch the investigations into the alleged mutiny plot and alleged kidnapping of members of the Lesotho Defence Force.”
Brigadier Mareka also said his lawyers had already written a letter to the head of SADC’s Commission of Inquiry into Lesotho’s instability, Justice Mpathi Phumaphi, querying the convening of the Court Martial while the commission was also proceeding with its enquiry.
“It is my viewpoint that Minister of Defence, Hon. Tšeliso Mokhosi has no jurisdictional fact for exercising powers entrusted on him to set up the Court Martial under the present circumstances traversed in the letter above,” he said.
Five lawyers representing the army officers wrote a letter to Justice Phumaphi last Friday expressing concern over the envisaged Court Martial proceedings against their clients.
The lawyers—Attorney Khotso Nthontho, Advocate Haae Phoofolo (King’s Counsel), Advocate Christopher Lephuthing, Attorney Tumisang Mosotho and Advocate Koili Ndebele — submitted their communiqué to Justice Phumaphi highlighting fears the Commission could end up being invalidated should the Court Martial continue.
The case is expected to be heard today.