Detained soldiers fight for freedom
THREE detained members of the Lesotho Defence Force (LDF) filed an urgent application in the High Court on Thursday last week seeking an order for their immediate release from the Maseru Maximum Security Prison.
The soldiers allege their continued detention, which started on 14 May this year after being arrested on allegations they planned a mutiny, is unlawful.
Lance Corporal Aupa Mohasi, Corporal Molato Mohatlane and Lance Corporal Toma Nehemia Jobo want Major General (Lineo) Poopa’s directive issued on 10 July 2015 in terms of Regulation 11(2) of the Defence Force (Discipline) Regulation No 29 of 1998 to be “reviewed, corrected and set aside”.
The directive stipulates that the three soldiers should remain in prison until the Southern African Development Community (SADC) Commission, which was appointed early this month, has finalised its inquiry into the alleged mutiny.
According to Defence Force regulations, members of the LDF should not be incarcerated for more than 42 days without being put before a Court Martial.
But in his directive, Major General Poopa said: “Being aware that you have been under close arrest (save A1) for more than 42 consecutive days pending trial by a military court; And having been duly advised by the Director of Legal Services that you shall not be released from custody on the grounds inter alia that investigations are being finalised, the Court Martial structure is yet to be set-up, and the SADC Extraordinary Summit of the Double Troika on 3 July 2015 took a decision, under Decision 2 thereof, that … the Kingdom of Lesotho should put on hold the Court Martial processes to allow for the independent SADC Commission of Inquiry…I now therefore uphold the advice and direct that you shall not be released from custody pending trial by the Court Martial.”
The A1 that Major General Poopa was referring to was Brigadier Thoso Mareka who is now at home but under open arrest.
However, Lance Corporal Mohasi, Corporal Mohatlane and Lance Corporal Jobo want the High Court to set aside Major General Poopa’s decision which they allege is against the law.
In the alternative, the soldiers want to be put “under open arrest pending trial by the Court Martial”.
The applicants cited LDF Commander Lieutenant General Tlali Kamoli, LDF Director of Military Intelligence Lieutenant Colonel Tumo Lekhooa, Defence Minister Tšeliso Mokhosi and Attorney General Tšokolo Makhethe as first to fourth respondents, respectively.
In support of their case, Lance Corporal Mohasi wrote an affidavit detailing the nature of their case, noting: “I had been in custody at Maximum Security Prison for a period of 54 days at the time I initiated the application.
“On the 15th of July 2015, I and my co-applicants received a directive from Major General Poopa intimating that he had accepted advice that we shall not be released from custody pending trial by the Court Martial from the Director of Legal Services.
“The basis for the said advice is that investigations are being finalised, the Court Martial structure is yet to be set-up and that the Extraordinary Summit of the Double Troika resolved that the Kingdom of Lesotho should put on hold the Court Martial processes to allow for the independent SADC Commission of Inquiry.
“I and my co-applicants wish to point out from the onset that the directive is clearly self-defeating or preposterous because of the following reasons:
- It is clearly pointed out that the Court Martial structure is yet to be set-up, yet we cannot be released from custody pending trial by the Court Martial. I aver that it cannot be right to keep us in custody pending trial by a Court Martial whose structure has not even been set-up at the time the decision was made. This is such an untenable situation which cannot be countenanced in law as it is illogical.
- On the issue of investigations being finalised, it is very clear that since we have gone over the 42-days period without being presented before the Court Martial, there are further investigations on our issues as investigations have not been finalised. In that case then the law empowers the unit Commander to exercise his discretion as regards the manner or form of arrest/ detention not to a Superior Authority in the form of the Major General. I should point out that the Minister of Defence, who was speaking from a position of authority, has intimated that the late General Maaparankoe Mahao was the last one to be arrested. This he did on several occasions on radios and the print media. Again if the investigations are still pending or being finalised, then one cannot talk about the Court Martial pending.
- Lastly the decision goes to say that we shall not be released pending the trial by the Court Martial and yet the SADC Extraordinary Summit of the Double Troika took a decision that Lesotho should put on hold the Court Martial processes leading to the Court Martial have been suspended.
- We are now in custody pending trial by the Court Martial whose structure has not been set up and whose establishment has been put on hold. It defies logic therefore that we are put in holding cells pending trial by the Court Martial. There is clearly no Court Martial to date and it does not seem like there will be one in the near future.”
Lance Corporal Mohasi further stated they are likely to remain in custody “for a long time” because they would have to wait for the Commission of Inquiry to finish its job after 60 days.
“We are therefore, suffering the greatest prejudice one can ever imagine as ordinarily a detainee has a fundamental right to a trial within a reasonable time.
“No one can tell the court as to when exactly our purported trial is likely to start,” he stated.
He further challenged Major General Poopa’s statement that he was advised by the Director of Legal Services, Colonel Monaheng Kolisang, on the course of action as the colonel is also one of the several detainees at the maximum security prison.
“It is also important to mention that the Director of Legal Services in the Lesotho Defence Force N0. 7628, Colonel Kolisang is also in detention and appears as accused No 4 on the charge sheet.
“It cannot be correct therefore that he has rendered such advice.
“I am advised and believe the same to be true that in law, whoever rendered advice ought to have shown clearly that the advice was rendered by someone on an acting basis and that has not been the case.”
Meanwhile, the detained soldiers’ lawyer, Attorney Khotso Nthontho also submitted a Certificate-of-Urgency for the court to speedily deal with the case.
In the Certificate-of-Urgency attached to the court papers, Attorney Nthontho argues the case should be heard immediately because Lance Corporal Mohasi has to enrol for his law studies at the National University of Lesotho (NUL) for the 2015-2016 academic year.
He states: “The first applicant has been admitted at the National University of Lesotho as a matriculate in the Faculty of Law and had to enrol on 23 July 2015. However, he cannot do so because he is in detention at the Maximum Security Prison.”
The case will be heard on 19 August this year.