Mohalenyane Phakela
JUDGE Charles Hungwe has thrown out former army commander Tlali Kamoli’s application to have his attempted murder trial moved from the High Court to the magistrates’ court.
The attempted murder charges are in connection with the 27 January 2014 simultaneous bombings of the homes of former First Lady ‘Maesaiah Thabane and former police commissioner Khothatso Tšooana.
Lt-Gen Kamoli’s co-accused are Major Pitso Ramoepane, Captain Litekanyo Nyakane, Sergeant Malefane Heqoa and Corporal Mohlalefi Seitlheko.
All the accused face 17 charges of attempted murder, aggravated assault and causing the risk of injury or death. Lt-Gen Kamoli faces additional charges of issuing illegal orders and the obstruction of justice.
When the indictment was read out to them last Thursday, they all pleaded that the High Court did not have jurisdiction to try them.
Their lawyers argued that their clients should instead be tried by the magistrates’ court which also has powers to try attempted murder cases.
Lt-Gen Kamoli is represented by Advocate Letuka Molati, Major Ramoepane by Adv Karabo Mohau, Captain Nyakane and Sergeant Heqoa by Adv Napo Mafaesa and Corporal Seitlheko by Adv Hopolang Nathane.
Adv Molati had argued that he did not understand how Lt-Gen Kamoli and others’ case was before the High Court when another attempted murder trial of the four soldiers accused of the July 2016 attempted murder of former Lesotho Times editor, Lloyd Mutungamiri, was before the Maseru Magistrates’ Court. The four accused are Brigadier Rapele Mphaki, Colonels Khutlang Mochesane, Nyatso Tšoeunyane and Maribe Nathane.
Other defence lawyers echoed Adv Molati’s sentiments, adding that magistrates were competent to preside over the matter.
On his part, the lead prosecutor, South African Adv Shaun Abrahams, argued that the Director of Public Prosecutions (DPP) had powers to decide which court should prosecute a particular case. He also argued that the High Court had unlimited jurisdiction in criminal cases hence it could hear the matter.
Delivering judgement on Tuesday, Justice Hungwe said the accused and their lawyers had failed to prove why they could not be tried by the High Court. He also said they should have challenged the High Court’s jurisdiction to try them when the charge sheet was filed in 2018.
He said the High Court had jurisdiction to hear the matter and therefore dismissed the application.
“I observe that the accused are seeking an order to be moved to the magistrates’ court and not to be acquitted,” Justice Hungwe said.
“This court has jurisdiction. They asked me to decline jurisdiction because there is another court which has the same jurisdiction. There is no sound basis for me to decline jurisdiction. As such, the application is dismissed.”
Immediately after the ruling, Adv Mafaesa said his clients had instructed him to appeal the judgement in the Court of Appeal.
“My instruction is to file an appeal to the Court of Appeal for it to determine the correctness of this decision,” Adv Mafaesa said. Other lawyers said they were yet to take instructions on whether or not to appeal.
Justice Hungwe then postponed the trial to 5 July 2021 for mention.
Lt-Gen Kamoli, who is accused of various crimes including murder and treason, has previously filed several unsuccessful applications to stop the prosecutions. He has filed the applications on his own or with fellow accused who are either serving or former members of the security agencies.
Judges, the prosecution, lawyers and analysts have all accused the former commander and others of making frivolous court applications to delay their trials.
Analysts have also argued that the applications are meant to delay the trials as long as possible in the hope that a new government sympathetic to Lt-Gen Kamoli and other high-profile suspects will come to power after next year’s polls and throw out their cases.
They are also said to be counting on the enactment of the National Peace and Unity Bill into law to provide for the establishment of a National Peace and Unity Commission empowered to grant them amnesty provided they testify truthfully, disclose their crimes in full and show remorse.
