Mohalenyane Phakela | Pascalinah Kabi
NEWLY-APPOINTED Chief Justice, Sakoane Sakoane, has warned former army commander, Tlali Kamoli and other detained soldiers’ lawyers against conduct likely to bring the courts into disrepute.
Justice Sakoane said the lawyers’ right to represent suspects was not absolute and that they could withdraw their services if they so wished. But they could not so in manner that amounts to scandalising the courts, he said.
He said this in a statement issued in response to the 10 lawyers who had demanded that he acts on what they alleged were violations of their clients’ rights by the prison authorities.
Their demands are contained in the letter of demand to Justice Sakoane dated 18 November 2020.
The letter is also addressed to local judges and the Attorney General, Advocate Haae Phoofolo. It is copied to Prime Minister Moeketsi Majoro, Speaker of Parliament Sephiri Motanyane, and Law and Justice Minister Professor Nqosa Mahao,
The lawyers are King’s Counsels Zwelakhe Mda, Karabo Mohau, Attorney Qhalehang Letsika and Advocates Letuka Molati, Kao Theoha, Silas Ratau, Mkhantji Kao, Kabelo Letuka, Napo Mafaesa and Lintle Tuke.
The lawyers accuse SADC leaders of complicity in the alleged denial of their clients’ rights to a fair trial. They warn that through their complicity SADC leaders are actually sowing seeds of future instability in Lesotho instead of addressing the problem.
Lt-Gen Kamoli and other soldiers have been detained at the Maseru Central Correctional Institution (MCCI) since their arrest in 2017 awaiting trial for various crimes including treason against the first government of former Prime Minister Thomas Thabane in 2014 and the murder of army commander, Lt-Gen Maaparankoe Mahao.
Their lawyers also accuse the prosecution of a shoddy job in preparing for their clients’ trials, saying dockets and other documents necessary to the charges are only being prepared now more than three years after their clients were arrested and detained.
They also want Zimbabwe and fellow SADC state, Botswana, who have provided judges for the high-profile trials to withdraw them. Zimbabwe provided Justice Hungwe while Botswana provided Justices Tshosa and Kabelo Lebotse. The judges’ allowances are paid from a fund sourced from the EU.
Justice Lebotse resigned earlier this year, citing poor working conditions. His resignation left Justices Hungwe and Tshosa with the huge task of presiding over the high-profile trials by themselves.
The lawyers said they had withdrawn their services from their clients until their demands were addressed.
However, in his reply to the lawyers yesterday, Justice Sakoane expressed his disappointment at the conduct of the senior lawyers who he said ought to conduct themselves in accordance with the law.
“Lawyers have the right to freedom of expression but in exercising this right, the lawyers must always conduct themselves in accordance with the law and recognised standards and ethics of the legal profession,” Justice Sakoane said.
“There is reasonable cause to believe that some of the contents of the statements border on scandalising the court. Reference is made to characterising the trials as ‘charades’ and ‘an incubation for further instability and absence of peace in Lesotho’ and accusing trial judges of behaving ‘in the most nonchalant manner unprecedented in this jurisdiction’.
“It is not debatable that a lawyer who loses an argument in a trial can resort to appellate or review procedures if he or she wants corrective judicial action. This is the constitutional avenue available. Any appeal to non-judicial bodies is an appeal for political interference with the judicial independence and an endeavour to delegitimise the criminal trials. A lawyer who dabbles in such conduct betrays his/her oath to uphold and respect the courts, the law and the constitution.
“The writers of the statement are seasoned lawyers and senior members of the bar, some of them. They are obliged to respect rulings of courts and only criticise them in the available appellate or review processes. Any statement issued to the national and international community to garner sympathy is a political space which judicial officers must not enter,” Justice Sakoane said.
He also quoted section 90 of the Penal Code which states that “a person who makes or publishes any statement which he or she knows or has reasonable grounds to suspect is untrue and is calculated to bring any judicial officer or court into disrepute, commits an offence”.
He said he could not interfere with the work of other judges, especially when the matters in question were still pending before the judges.
He said since the trials were sub judice (still under judicial consideration), he could not comment “on any issue the lawyers raise in respect of which no judgement has not been pronounced or is yet to be pronounced”.
The chief justice also said it was the lawyers’ choice to represent Lt-Gen Kamoli and they could withdraw their services at any point if they so wished. However, the trials would continue without them, he said.
“The concerned lawyers know very well that they represent clients not by their own right but by choice of the accused. If they feel compelled not to continue representing the accused, they are obliged to withdraw. But in so doing, it does not follow that the accused can withdraw from the proceedings as well. The accused simply do not have the choice of withdrawal.
“The duty of the court is to assist the accused by appointing pro deo (state-funded) counsel. Should the accused reject pro deo counsel, as it is their choice to do so, then they must represent themselves and the trials will proceed to finality.
“Criminal trials must proceed without interruption on the scheduled dates. That is what the parliament has decreed in the Speedy Trials Act N0.9 of 2002. Any lawyer who interrupts or boycotts such trials can be sanctioned or reported to the Law Society for disciplinary action. Thus, parliament has drawn a line in the sand. I trust all concerned will studiously avoid crossing that line,” Justice Sakoane states.
