. . . as police, DPP are accused of shoddy work in murder cases
. . . new law required to set parameters for bail in serious cases
…..but other lawyers maintain bail is not punitive and must not be harsh
Mohalenyane Phakela/Moorosi Tsiane
THE High Court in Lesotho is too lenient in awarding bail to alleged murderers, resulting in the commitment of repeat or revenge offences, analysts have said.
The office of the Director of Public Prosecutions (DPP) had also proven very incompetent in failing to oppose bail for those accused of committing gruesome crimes. Once granted bail, many cases go cold thus incentivising criminals to continue committing horrendous crimes, the analysts say.
The paralysis in criminal justice delivery had triggered the rapid rise of offences committed by the same suspects admitted to bail or aggrieved victims bent on revenge against the bailed suspects.
The analysts spoke after the High Court recently granted suspended Naledi Funeral Planners CEO, Thabiso Madiba, a mere M2 000 bail for the gruesome killings of Ikhetheleng Matabane and ‘Maserema ‘Makong. The murders shook the country to the core, given the brazen way they were committed in broad daylight at a restaurant full of patrons.
Just a few months ago, Bokang Mahlelehlele and Matsoso Maekane, the two people accused of murdering Tsikoane constituency legislator Malefane Mabote’s wife, ’Maretšepile Mabote, walked out on a paltry M5 000 bail each.
Again, two Maseru sisters who allegedly killed their mother so they could cash in on her M1 million life insurance policy, Nthei Rasekoai and ’Maphoka Rasekoai, walked away with a measly M500 bail each.
The office of the Director of Public Prosecutions (DPP) did not oppose bail in all these instances, despite the harrowing nature of the murders.
Even though the Constitution and legislation contain provisions on presumption of innocence until a person is proven guilty, thereby making bail a necessity, the High Court still had the discretion to deny bail for those accused of committing horrendous crimes. People like former army commander Tlali Kamoli have languished in jail for years having been denied bail.
However, the police and law experts feel that the High Court has generally been too lenient in awarding bail to alleged murderers. The High Court’s situation is not made easier by the DPP’s office which has now perfected the norm of not opposing bail despite the seriousness of the cases involved.
Retired lawyer, Kelebone Maope King’s Counsel (KC), who served as Attorney General and Minister of Justice under the military regime that ruled Lesotho from 1986 to 1993, said law and order had spiraled out of control in the country because of the high murder rate. Lesotho now occupied number one spot in Africa in terms of homicides and six in the whole world, according to the World Population Review. Even failed states at war like South Sudan, the DRC and Somalia fare better than Lesotho in homicide rankings.
Adv Maope said the police and the prosecution should take a large chunk of the blame for failing to do their jobs properly.
Adv Maope was also deputy prime minister under Pakalitha Mosisili’s 1998-2002 premiership. He also served as the Minister of Law before breaking away ahead of the 2002 general elections to form his Lesotho People’s Congress (LPC) party. He is therefore an experienced hand in governance and the law.
“Lately, here in Lesotho things have just gone out of control as suspects get arrested by the police who then send them to the courts without completing their investigations. And due to their respect for human rights, courts cannot keep suspects in custody for long periods when the police and prosecution are still doing their investigations,” Advocate Maope told the Lesotho Times.
He said the situation could be fixed, by among things, having the Director of Public Prosecutions (DPP), Hlalefang Motinyane, working hand in hand with Attorney General Rapelang Motsieloa.
Adv Maope said it seemed the two were working in silos on various fronts. The AG is the legal advisor to the government. It would be advisable for the DPP to seek advice from him on issues of ensuring effective criminal justice delivery, he said.
Legally, the DPP should account to the AG but it looked like this was not the case at the moment, Adv Maope said.
“It is really a difficult position in law because the judiciary is expected to protect the law while the nation on the other hand wants judges to bend the law. Judges base their decisions on laws that govern the country and if the prosecution and the police fail to do their jobs there is really nothing much that the courts can do.”
Adv Maope said the police and the prosecution were not diligent in discharging their duties. The police were involved in shoddy investigations while the DPP had developed a routine of bringing half-baked cases to court.
“When they (the police) make arrests it should be because they are ready to take those matters to court for prosecution. They should not arrest people only to try to investigate through the same suspects by torturing them,” he said.
The police should also be equipped with modern tactics of investigating cases as they were still stuck in the past. The police’s failure to move with the times had resulted in them taking too long to probe cases and in many instances resorting to torturing suspects to extract forced confessions. The police have thus been losing a number of court cases for their brutality in handling investigations.
Furthermore, suspects were being treated in a discriminatory manner by the courts and the DPP’s office with certain high heeled people being admitted to bail easily, Adv Maope said.
He cited the case of Health Minister Selibe Mochoboroane and former deputy prime minister, Mothetjoa Metsing, who were granted bail in their treason and murder cases while their co-accused soldiers have repeatedly been denied the same conditions in a similar set of facts arising from the the 30 August 2014 attempted coup against former Prime Minister Thomas Thabane’s first government.
“It raises eyebrows that a suspect like Metsing flees the country when they wanted to charge him, and when he decides to return, he is easily admitted to bail yet other accused persons in the same case were denied bail yet they never tried to flee. It gives people an impression that the courts are biased. Some will even end up thinking that the judges are being given some sort of bribes thereby plunging the administration of justice into ill-repute,” Adv Maope said.
The incompetency of prosecutors, who took cases to court and then ask for postponements because investigations were not yet concluded, was also a huge problem. In such cases, the courts would be forced to admit such suspects to bail because the prosecution would have failed to do its job, he said.
The defence should be the ones asking for cases to be postponed, not the prosecution, he added.
Adv Maope said he was shocked that the prosecution were either not opposing bail or agreeing to small bail deposits for horrendous crimes.
“I was in court for some personal matter some weeks back and I was very surprised when I was listening to some cases where the prosecution had agreed with the defence on some ridiculously little amounts of bail. I personally believe M2 000 bail for murder is just too little. But then if the prosecution and defence have agreed on the small amount, or if the prosecution fail to oppose the amount, then the courts are left with little choice but to grant bail on those terms.”
He suggested the establishment of a commission of inquiry to probe how murder cases were being handled and recommend steps that must be implemented to achieve justice for all.
Adv Maope said it was very sad that some suspected murderers were roaming the streets because of the incompetence of both the police and the prosecution service.
Another retired lawyer and former Law and Justice Minister, Lekhetho Rakuoane, said a new law stipulating strict bail conditions for serious crimes should be introduced.
“One cannot dispute that the rate at which murder and other serious crime suspects are being admitted to bail may be contributing to the high crime rate in this country,” Adv Rakuoane said.
He said he had left a draft bill at the Law and Justice ministry seeking to tighten the granting of bail in serious offences.
“I do not know why the bill is taking so long to be finalised. It (the bill) would incorporate the consideration of victims and other factors before one is granted bail in serious cases…,” he said.
Adv Rakuoane suggested “a lot of corruption” in the granting of bail to suspects in Lesotho.
It was very sad that a murder suspect would get a minuscule M500 bail, he said. That inevitably helped in creating an impression that there was no rule of law in the country.
It would be better if the minimum bail deposit for murder was pegged at M10 000 for people to know that they could not get away with crime so cheaply, Adv Rakuoane said.
“Magistrates and judges should also be allowed to deviate from any minimum thresholds (of bail) when there are exceptional circumstances warranting that ….,” he said.
Police spokesperson, Senior Superintendent Mpiti Mopeli, said they had tried to oppose bail on numerous occasions but the courts would insist that suspects had a right to bail.
He said they were frustrated by the easy granting of bail to dangerous criminal suspects involved in different crimes at the same go.
“Firstly, you will recall that bail is regarded as a right of every person accused of committing a crime. Secondly, we do go to court to oppose bail but the courts often rule that it is every suspect’s right to be admitted to bail. It frustrates our efforts as police because we have very little resources to pursue and arrest suspects who will in turn be admitted to bail in different cases pending before the same or different courts….This makes it difficult to reduce the crime rate in the country because the same people keep on committing crimes.
“On the other hand, you may find that victims see the suspects back in their vicinity boasting that they are untouchable. That results in a chain of crimes because after a suspect is killed by the aggrieved parties, their (suspect’s) family or associates will also avenge, creating a vicious circle of lawbreaking,” Senior Supt Mopeli said.
In some cases suspects fled the country after being admitted to bail, ensuring they don’t return to stand trial to finality.
“The granting of bail to murder suspects needs to be addressed by considering it in a broader manner, not only taking into account the rights of an accused, but also the circumstances of the victims and the repercussions which might be created by the release of the suspect. Even if the law is revised, it will still depend on how it is applied,” Senior Supt Mopeli said.
However practising lawyer, Makhabane Masupha, begged to differ.
Advocate Masupha said it would be wrong to imprison suspects before their conviction as that would be prejudicial to them. The state would end up paying them millions of maloti for the time they spent in remand custody should the courts not find them guilty, he said.
The judiciary had increased the number of judges and it was now able to hold more criminal sessions thus, speedily disposing of murder cases.
“We have seen recent murder cases being tried by the High Court other than in the past when it would take around eight years before a trial could commence.
“Every accused person is presumed innocent until the the court rules otherwise. Therefore, it would not be fair to incarcerate suspects just because they are alleged to have committed serious crimes when they are in fact entitled to bail.
“Take (former army commander Tlali) Kamoli and others for instance. How are they going to be compensated for imprisonment if not convicted? This will be a huge expense to the state should the courts not find them guilty,” Adv Masupha said.
Another lawyer, Kabelo Letuka, said bail was a constitutional right regardless of what a person is charged with.
The reason to deny accused persons bail was not about how big the crime was but whether such accused persons were flight risks or if they could interfere with investigations, he said.
Adv Letuka also noted that the money paid as bail was not to punish suspects but rather just to show a commitment from them that they will stand trial.
On the DPP not opposing bail in some instances, he said the DPP was not meant to just oppose bail. She would also have to prove that the accused is a flight risk or can interfere with investigations.
In order to curb the high crime rate in the country, cases should be completed fast and suspects prosecuted. But that remained a challenge nonetheless because the courts were under staffed, Adv Letuka said.
He noted that the courts sometimes moved away from the set principles on awarding bail especially in cases involving high-profile people.
“Every offence has bail but unfortunately it has become political and the courts have moved away from the set principles. They only stick to them where there is a public outcry.
“You find that some people of high status will be given bail and while others are denied even though they are charged with the same crime,” he said.
Adv Letuka cited the case of former First Lady, ‘Maesaiah Thabane, who was charged with murder and Mr Metsing who is charged with treason. They both went into exile but they were granted bail upon their return while other accused persons charged with similar crimes were denied bail.
Adv Salemane Phafane KC shared Adv Letuka’s sentiments that bail was not a punishment.
Adv Phafane said bail was an entitlement and the money deposited was not meant to curb crime.
“What we need to remember is that bail is an entitlement and the money put as bail is not meant to prevent crime but rather a commitment that one will stand trial. Courts take people applying for bail as innocent until they are tried and proven guilty.”
He said it wasn’t much of a big deal if the DPP was not opposing bails. What was important was for the DPP to ensure that cases were prosecuted in time.
“Whether bail is opposed or not it is not much of a difference. The issue is that the DPP should see to it that cases are prosecuted in time and if the accused persons are found guilty then the courts can introduce those hefty fines or judgements. That is what can curb a high crime rate, not bail.
“As a country we already face a challenge. Our correctional service facilities are already full so we can imagine if accused are not given bail and the cases are dragging on as is the case now. Our facilities wouldn’t manage that.”
He said in most cases murders were committed by people who were not well off. To them a M2000 bail fee was a lot of money.
This was unlike a well off white collar crime suspect who saw M20 000 bail as peanuts, Adv Phafane said.
