- as foreign judges’ contracts set to expire next month,
- govt and judiciary yet to meet with EU to discuss extensions.
Mohalenyane Phakela
THE high-profile trials of politicians, serving and former members of security agencies accused of a litany of crimes are in danger of collapsing because contracts of foreign judges recruited to preside over the cases will expire next month.
Some of the trials include that of former army commander Lieutenant General (Lt-Gen) Tlali Kamoli who stands accused of various crimes including the murder of army commander Lt-Gen Maaparankoe Mahao and treason against the first government of former Prime Minister Thomas Thabane, among other cases.
Lt-Gen Kamoli and his co-accused’s trials were supposed to have begun after the government recruited three foreign judges from Botswana and Zimbabwe in August 2019. They should have been concluded by next month.
The three foreign judges who were recruited are Justice Charles from Zimbabwe and Botswana Judges Onkemetse Tshosa and Kabelo Lebotse.
However, there are only two judges remaining after Justice Lebotse quit early last year in protest at poor working conditions.
However, with the February 2021 deadline just around the corner, none of the trials have been concluded, let alone begun, mainly due to various court actions by Lt-Gen Kamoli and his fellow accused to stall the trials.
Even though the government and the judiciary were aware of the February 2021 deadline, they appear to have left it till late and are only now seeking to engage the European Union (EU) for funding for the extension of the contracts of Justices Hungwe and Tshosa.
Although the judges were recruited with the help of the Southern African Development Community (SADC), funds for their salaries and allowances were sourced from the EU. For their contracts to be extended, the government and judiciary would still have to extend the begging bowl to the EU for their upkeep.
EU ambassador to Lesotho, Christian Manahl, this week said they are yet to meet with the government and judiciary to discuss the extension of the judges’ contracts and the funding needs. Dr Manahl said the delay was caused by the fact that the government and judiciary only informed them earlier this month of the need to discuss the matter.
“We only received a request for an extension from the Ministry of Law and Justice earlier this month,” Mr Manahl said in an interview with the Lesotho Times this week.
“We shall discuss with the Ministry, the Registrar (of the High Court and Court of Appeal Advocate ‘Mathato Sekoai) and the judges themselves to get a better idea of the expected timeline for the trials. It is on that basis that we shall examine the request.”
He said although the initial agreement was for an 18-month contract for the foreign judges, the EU funding programme would only end in April 2021.
This- he said- means that there will still be some funds under the current funding programme to pay the judges up to April 2021. The EU would then only be required to come up with a new package if the trials have to continue beyond that date.
But it is very likely that the trials will have to continue beyond April 2021 because there are currently only two judges for the numerous trials after the resignation of Justice Lebotse.
Another factor that is likely to cause the trials to go beyond the April 2021 date is that none of the trials have actually commenced. This because of the numerous postponements owing mainly to frequent court applications brought by the suspects to stop the state from trying them.
High Court and Court of Appeal Registrar, Advocate ‘Mathato Sekoai, yesterday refused to comment on the issue. She has previously said she will not discuss issues pertaining the judiciary with the media.
Justice and Law Minister, Professor Nqosa Mahao, kept rejecting calls to his mobile phone yesterday.
Lt-Gen Kamoli and some of his co-accused have been in remand prison since their arrest in October 2017 in connection with various crimes.
These include treason against the first government of former premier Thabane. In that case, Lt-Gen Kamoli and others are charged alongside former Deputy Prime Minister Mothetjoa Metsing and current Development Planning Minister Selibe Mochoboroane, over the bloody attempted coup of 30 August 2014.
Lt-Gen Kamoli and others are also charged with the June 2015 murder of army commander, Lt-Gen Mahao. Back in 2018, the government approached SADC members states and secured foreign judges to try these and other high-profile trials.
At the time, then Justice and Correctional Services Minister Mokhele 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 more likely to be acceptable and less likely to be viewed as biased.
With the help of SADC, the government eventually secured the services of Justices Hungwe, Tshosa and Lebotse in 2019. The judges’ allowances are paid from a fund sourced from the EU.
Justice Lebotse’s resignation left Justices Hungwe and Tshosa with the huge task of presiding over the high-profile trials by themselves.
But the trials have failed to take off due to the numerous frivolous cases filed by Lt-Gen Kamoli and his co-accused. The cases are solely aimed at frustrating the trials from proceeding. Lt-Gen Kamoli and his co-conspirators have repeatedly sought to forestall the trials in the hope that a new government emerges that will let them off the hook. They have put their faith on such a government emerging from the ubiquitous changes that define Lesotho’s politics. Four different administrations have ruled Lesotho in about eight years. In one such frivolous case at some point, they unsuccessfully sought the recusal of Justice Hungwe, alleging that they were unlikely to get a fair trial as he had already prejudged them by labelling them “killers of Lt-Gen Mahao”.
This particular case was thrown but this did not stop them from filing other constitutional applications to stop the state from trying them.
There is still a pending case before the Constitutional Court in which Lt-Gen Kamoli and 27 other accused want their trials to be permanently halted because they have been in prison for an “unreasonable” time. This case is despite the obvious fact that the accused’s trials have not taken off on account of their own behaviour, causing them to remain in custody. The accused are also persisting with their bid to have Justices Hungwe and Tshosa to be declared unfit to preside over their trials.
Lt-Gen Kamoli and his fellow members of the security agencies are not the only ones who have sought to stop the trials.
The politicians, Messrs Metsing and Mochoboroane have filed several court applications to stop the state from trying them on the grounds that clause 10 of an October 2018 government-opposition agreement specifically states that they should not be tried at least until after the completion of the multi-sector reforms which were recommended by SADC in 2016.
The trials also faced another hurdle from Lt-Gen Kamoli and his co-accused’s lawyers who withdrew their services and also petitioned Chief Justice Sakoane Sakoane, the government, SADC, the EU and the foreign judges themselves to stop what they called the “charade of trials meant to produce a determined outcome” against their clients.
In their 18 November 2020 petition, the lawyers repeated allegations previously made by Lt-Gen Kamoli and others of inhuman treatment and poor conditions at the Maseru Central Correctional Institution (MCCI).
They asked Justice Sakoane to urgently address their concerns about the alleged denial of their clients’ rights to adequate food, adequate time to consult their lawyers and documents to enable them to adequately prepare for their trials.
They argued that in some of the cases the state had either refused or ignored their requests to supply their clients with specific documents they need to prepare their defences. They also accused the presiding judges of failing to address their concerns.
They said until Justice Sakoane addressed their concerns, they would withdraw their services to their clients to ensure that they were not be part of “this grotesque travesty of justice”. But this too appeared to have been another carefully orchestrated attempt to sabotage the trials.
However, Justice Sakoane rejected the lawyers’ demands last month. He even warned them against conduct likely to bring the courts into disrepute.
He warned that lawyers’ rights to represent suspects was not absolute and they could withdraw their services if they so wished. But they could not do so in a manner that amounted to scandalising the courts. The trials could still proceed without the lawyers.
