Mohalenyane Phakela / Nat Molomo
MURDER-ACCUSED former Defence minister Tšeliso Mokhosi, former army commander Tlali Kamoli and 14 other former members of different security agencies have launched an urgent High Court application for the reversal of the appointment of foreign judges to handle their criminal cases.
The first of the five foreign judges to try cases involving politicians and members of the security agencies, Zimbabwe’s Justice Charles Hungwe, is already in the country.
Justice Hungwe was sworn-in at the High Court on 15 January 2019 and on that same day, he got down to work, setting dates for the various criminal cases which will begin when the other foreign judges jet into the country before the end of this month.
But ahead of the arrival of the remaining foreign judges and the commencement of the trials, Mr Mokhosi, Lieutenant General Kamoli and 14 others filed their court application on 15 February 2019.
The other 14 applicants are 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 want the appointment of the foreign judges by the Judicial Service Commission (JSC) to be nullified on the grounds that it is unconstitutional.
In terms of the interim relief, they want Justice Hungwe and the other foreign judges to be interdicted and prevented from commencing criminal proceedings until the finalisation of their main court application.
“The first respondent (Justice Hungwe) and/or any foreign judge who has been appointed to preside over criminal proceedings… (should) be interdicted and prevented from convening and commencing criminal proceedings pending finalisation of these proceedings,” part of the application states.
“These criminal trials are stayed (deferred) until finalisation of the final relief (nullification of foreign judges’ appointments).
“It is declared that the appointment of the first respondent or any foreign judges specifically to preside over criminal proceedings was made in violation of the national constitution and is therefore null and void and of no force and effect.
“The recommendation by the Judicial Service Commission to appoint foreign judges to His Majesty the King (Letsie III) and the subsequent appointment of the first respondent (Justice Hungwe) or any foreign judge, pursuant to the initiatives of the executive, violates the provisions of section 132 (8) of the constitution which provides that in the exercise of its functions under the constitution, the Judicial Service Commission shall not be subject to the direction or control of any other person or authority.”
The applicants further state that the appointment of foreign judges violates “provisions of section 12 (1) of the Constitution which guarantees the right to fair trial, section 118 (3) of the constitution which guarantees the independence of the judiciary and are therefore null and void and of no force and effect”.
In his affidavit submitted as part of the application, Lt-Gen Kamoli said, “I aver that I appeared (last month) before a foreign judge (Justice Charles Hungwe) whose particulars I do not know. The Honourable judge indicated in an open court that he has learned about my attitude”.
“In this regard, I shall request the copy of the record to be transcribed as the exchange between us showed a judge who is not independent but has prejudged matters and accused persons he is yet to try.
“I aver that similar position applies to his colleagues who were appointed under similar circumstances. I believe that I am accurate in that analysis. I was surprised by this particular judge’s attitude towards me when I requested clarity over simple things such as why the (Assistant) High Registrar (Staford Sharite) was allowed to give me documents when my counsel was denied that opportunity,” Lt-Gen Kamoli states.
Mr Mokhosi also states in his affidavit that foreign judges had been appointed to deliver verdict in line with the government’s desire to have them jailed.
“I wish to indicate that we object to the government made up of politicians like myself initiating the appointment of judges because we suspect that…the government is desirous to have certain outcomes.
“In particular I am clear in mind that the government the government wants us to be convicted at all costs and receive the harshest possible sentences.
“The participation of the Attorney General, the legal adviser of the executive and the Director of Public Prosecutions, the prosecuting authority in our criminal trials, in the recruitment of (foreign) judges gives a reasonable impression that certain judges are picked to achieve certain desired criminal trial outcomes.”
Lt-Gen Kamoli faces a murder charge stemming from the 30 August 2014 killing of Police Sub-Inspector, Mokheseng Ramahloko.
Sub-Inspector Ramahloko was shot and killed by soldiers during the attempted coup of 30 August 2014 at the police headquarters in Maseru. The soldiers who allegedly acted on the instructions of the then army commander, Lt-Gen Kamoli, also raided several other police stations in Maseru and seized an assortment of weapons.
Lt-Gen Kamoli also faces 14 counts of attempted murder in connection with the 27 January 2014 simultaneous bombings of the Moshoeshoe II homes of First Lady Maesaiah Thabane and the Ha Abia residence of former police commissioner, Khothatso Tšooana.
He is charged alongside Major Ramoepane, Captain Litekanyo Nyakane, Sergeant Heqoa Malefane and Corporal Mohlalefi Seitlheko.
Major Ramoepane faces a separate murder charge in connection with the 5 September 2017 assassination of army commander Lt-Gen Khoantle Motšomotšo.
Mr Mokhosi faces charges of murdering Police Constable (PC) Mokalekale Khetheng. He is charged along with 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.
Messrs Mokhosi and Letsoepa are in exile while the four officers are still detained at the Maseru Maximum Security Prison.
There are 10 soldiers who stand accused of strangling Lekhoele Noko, Molise Pakela and Khothatso Makibinyane at Setibing in rural Maseru on 16 May 2017 and dumped their bodies in the Mohale Dam.
The 10 soldiers are Brigadier Rapele Mphaki, Sergeant Lekhooa Moepi, Captain Mahlehle Moeletsi, Lance Corporal Mahlomola Makhoali, Private Nthatakane Motanyane, Motšoane Machai, Tieho Tikiso, Pitso Ramoepana, Liphapang Sefako and Nemase Faso.
The soldiers allegedly kidnapped and murdered the three men after the trio had just been released from police custody where they were detained in connection with a shooting incident that occurred at the Maseru border gate on 13 May 2017.
Mr Mokhosi, Lt-Gen Kamoli and the others’ court application has been a long time coming.
Last April, the lawyers representing Lt-Gen Kamoli and other soldiers threatened to file a constitutional application to oppose the recruitment of foreign judges.
They said the recruitment of foreign judges amounted to an interference with the independence of the judiciary.
In his address to the High Court on behalf of the defence lawyers in April 2018, Advocate Motiea Teele, said “the unanimous view of all counsel appearing in these matters is that we will not accept the involvement of foreign judges to hear these matters”.
“Our local judges are competent and able to deal with these matters. It has come to our attention that the involvement of foreign judges was at the initiative of the executive. It has now come to the public knowledge that this initiative was not done in consultation with the chief justice (the now suspended Nthomeng Majara),” Adv Teele submitted.
He added: “The proper constitutional way is by the advice of the chief justice and this must be done to reduce the backlog of cases in this court. But in this case, it is the government that says it is going to give the chief justice judges that will be sourced elsewhere.
“The correct position is that the chief justice should advise the government and the government should assist with funds. The business of this court is the responsibility of the chief justice. The question of allocation of cases is one of the integral parts of the judicial independence.”
Last November, Mr Mokhosi’s lawyer, Adv Mda, told High Court judge, Justice Sakoane Sakoane that they could not understand why his case required a foreign judge to preside over it when it was similar to other murder cases which had been heard by local judges in the same court.
“We put it before this court that defendants have been ready to be tried by local judges but there has never been a clear reason why our clients should be given the special treatment of being tried by foreign judges,” Adv Mda said in November.
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 the Southern African Development Community (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.
“It has never been about the incompetency of local judges as the government believes they are capable enough to preside over the cases.
“However, the government and SADC agreed that due to the nature of the cases which are said to be politically sensitive, it would be best to source foreign judges because local judges are at risk of being victimised for the verdicts they would give in the cases,” Mr Moletsane said.