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Soldiers to wait longer in ConCourt case

Mohalenyane Phakela

THREE male soldiers accused of assaulting their female colleague in 2012 will have to wait longer to learn their fate after the Constitutional Court on Tuesday reserved judgement on their application for discharge on the grounds that their case has taken far too long to be heard in contravention of their constitutional right to a speedy trial.

The Constitutional Court bench comprising of Acting Chief Justice ‘Maseforo Mahase and Justices Lebohang Molete and Keketso Moahloli reserved judgement but did not say when the application will be finalised. The judges however, said they will soon communicate the date to the respondents and applicants’ lawyers. The office of the Director of Public Prosecutions (DPP) is the respondent in the case.

The three soldiers are Lekhooa Moepi, Simon Zwakala and Liphapang Sefako. They stand accused of assaulting Ntṧiuoa Molapo between 13 and 16 December 2012 with the intention of causing her grievous bodily harm.

The charge sheet states that the “accused are charged with the crime of aggravated assault in contravention of Section 109 of the Penal Code Act No. 6/2010”.

“Upon or about dates between 13 and 16 December 2012, at or near Ratjomose Barracks, the said accused did…intentionally assault Private Ntṧiuoa Molapo by kicking her with shoes on the vagina and also hitting her with a blunt object all over the body with the intention of causing her serious bodily injury or any form of lasting physical disablement.”

The three officers first appeared in the Magistrates’ Court on 12 June 2018 and their case has been remanded on several occasions. During their 1 October 2018 court appearance, their lawyer, Advocate Qhalehang Letsika, asked that that the case be heard as a constitutional matter. Adv Letsika argued that his clients’ right to a speedy and fair trial had been infringed as the case kept being postponed even though the alleged crime happened a long time ago.

The three soldiers eventually lodged their Constitutional Court challenge last October. On Tuesday, Adv Letsika argued that his clients should have been brought to court in July 2013 when the police sought a warrant of arrest from the office of the DPP.

“The investigating officer demanded a warrant of arrest on 22 July 2013 from the DPP but we do not know whether or not it was issued. The applicants were only be hauled before the court on 12 June 2018.

“There has been unreasonable delay. The trial starts the moment an intention to prosecute is made, thus delay can affect fairness of the trial. Just because they were free for five years (2013 to 2018), that does not mean their rights were not infringed.

“The Speedy Courts Trial Act speaks to criminal trials having to be fast-tracked to afford the accused fair trials in terms of section 12 of the constitution of Lesotho. Some of the witnesses who were to testify in their defence have passed away and they are also failing to locate others,” Adv Letsika said.

However, the DPP’s lawyer, Adv Thabo Mpaka, counter-argued that the accused were only charged last year and not in 2013 as alleged in their court papers.

“The applicants say that because the incident occurred in 2012, being charged in 2018 is unconstitutional. The applicants were only charged in June 2018 and not in July 2013. They were not accused persons until June 2018.

“According to the affidavit of the investigating officer, the then prevailing circumstances could not allow her to proceed with the prosecution. The then army commander (Lieutenant General Tlali Kamoli) publicly said he would never release any army officer, suspected of any crime, to the police. Even the predecessor of the current army commander was killed by soldiers who were resisting police interrogation.

“Apart from that, if applicants feel their prosecution process started in 2013, why did they have to wait all these years to file this constitutional case? They only showed intention to challenge the constitutionality of their criminal case on 1 October 2018 when their hearing was supposed to start,” Adv Mpaka said. The three judges then reserved judgement to a date to be communicated to the respondents and applicants’ lawyers.

Lt-Gen Mojalefa Letsoela is the current army commander and the government has said that his predecessor, Lt-Gen Khoantle Motšomotšo, was assassinated by senior soldiers, Colonel Hashatsi and Brigadier Bulane Sechele. Col Hashatsi and Brig Sechele were also killed in the gun battle that after they had stormed Lt-Gen Motšomotšo’s Ratjomose Barracks’ offices and assassinated him. The duo were said to be angry with Lt-Gen Motšomotšo who they accused of betrayal after he agreed to hand over some soldiers who were wanted by the police for suspected crimes during the tenure of former army commander, Tlali Kamoli.

However, Colonel Hashatsi’s mother ‘Mamosa, has refused to accept the government’s version, claiming instead that her son was unarmed and murdered in cold blood by fellow soldiers.

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