Mohalenyane Phakela
FOUR soldiers accused of the attempted murder of former Lesotho Times and Sunday Express editor, Lloyd Mutungamiri, have applied for leave to approach the Constitutional Court for an order compelling the state to drop the charges against them.
The four are Rapele Mphaki, Khutlang Mochesane, Nyatso Tšoeunyane and Maribe Nathane. During their Monday appearance before Senior Resident Magistrate, Peter Murenzi, their lawyers argued that they should be discharged because there was no prospect of them ever getting a fair trial.
This because the Crown decided to turn one of their co-accused, Mahanyane Phusumane, into an accomplice witness.
They argued that Phusumane was privy to their defence strategy. Now that he had been turned into a state witness, he could use this against them, thus comprising their rights to a fair trial, the lawyers argued.
However, the Crown was not amused by what it said were delaying tactics by the accused who are only raising the matter now despite that Phusumane was turned into a state witness way back on 3 September 2019.
On that day, Phusumane was freed from Maseru Central Correctional Institution where he had been remanded in custody alongside the four.
When proceedings got underway on Monday, Crown Counsel Rethabile Setlojoane, called in Phusumane to testify.
However, Advocate Letuka Molati, who represents Mphaki, immediately stood up and objected to Phusumane testifying.
“The witness (Phusumane) was once an accused person whom the Crown, through a process unknown to the defence, took out of jail and brought before a magistrate who is not seized with the matter. They made an arrangement that Phusumane would no longer be prosecuted but become a Crown witness,” Adv Molati submitted.
“I had already done extensive consultation with the first accused (Mphaki) and Phusumane. I had also compared my notes with those of Adv (Kabelo) Letuka who represents the other accused persons. The Crown has committed a number of irregularities that go to the heart of the fairness of the trial.
“The whole case has been permeated by a spirit of unfairness that is incurable. The only thing left is for these proceedings to be permanently stayed because of the unprocedural conduct of the Crown which has thrown the principle of a fair trial out of the window,” Adv Molati added.
He said the issue of permanently staying the accused soldiers’ trial needed to be dealt with by the Constitutional Court.
“We are now at a point where questions of law have to be determined. It has to be determined whether Phusumane is a qualified witness; whether the Crown’s consultation of Phusumane in the absence of defence did not contravene the accused’s right to a fair trial. It has to be determined whether turning Phusumane into a witness will not contravene section 12 of the Constitution which speaks to the accused’s rights in this case. It also has to be determined whether the Crown’s consultation of the then accused Phusumane without the knowledge or authorisation of his then lawyer (Molati) does not amount to violation of the fair trial principle in terms of section 12 of the Constitution.
“These are cardinal questions of law which cannot be determined by this (magistrates’) court. We therefore pray that these facts be placed straight away before the High Court, sitting as a Constitutional Court, to deal with them,” Adv Molati added.
Fellow defence lawyer, Karabo Mohau, concurred. He said Adv Letuka had also interviewed all the accused in the presence of Phusumane and their defence would be compromised as a result.
However, Crown Counsel Setlojoane argued that the defence’s application was a delaying tactic and urged Magistrate Murenzi to reject it. He argued that the accused knew as far back as September 2019 that Phusumane was an accomplice witness. He said on 4 September 2019, the defence lawyers said they were going to file a constitutional application challenging Phusumane being made a witness. He said even though the trial was deferred to allow the filing of that application, it never happened.
He argued that the prosecution was not obliged to consult with the defence regarding who to charge or who to withdraw charges against because the Director of Public Prosecutions (DPP), Hlalefang Motinyane, had the sole discretion in such matters.
“Section 5 of the Criminal Procedure and Evidence Act (CP&E) says it is the prerogative of the DPP to institute and withdraw charges at any stage of the proceedings,” argued Adv Setlojoane. The submission of Adv Molati is baseless and without substance. The law does not require the Crown to inquire from the defence. It is the prerogative of the Crown.
“The accused knew from September 2019 that Phusumane would testify as an accomplice. They cannot, at this stage, make an application to refer the matter. Section 236 of the CP&E does not state anywhere that the defence should be consulted…We therefore pray that this application be dismissed and we continue with the trial,” Adv Setlojoane counter-argued.
Due to a power outage at the court on Monday afternoon, Magistrate Murenzi postponed the matter to 3 August 2022 when he said he would “map the way forward”.
Mr Mutungamiri was the first to testify from 9 to 11 March this year.
In his testimony, the former editor said he has been unable to practice his craft since his 9 July 2016 shooting by soldiers under the command of Tlali Kamoli.
He said he has been unable to work because of the injuries he sustained and the trauma that he still suffers from the incident.
He told Magistrate Murenzi that he remains paralysed despite all the multiple surgeries that have been done on him ever since the event.
He had been flown into the country from his native Zimbabwe by Africa Media Holdings, the publishers of the Lesotho Times and Sunday Express newspapers. During that time he was placed under heavy security as he still feared for his life.
Mr Mutungamiri was left for dead when he was ambushed by soldiers as he arrived and attempted to open the gate at his home after finishing duty at the Sunday Express on 9 July 2016.
Mr Mutungamiri told Magistrate Murenzi he had undergone multiple operations to repair injuries by bullets that hit his body including the face. Although the shooting occurred in 2016, he still had to undergo another operation on his left eye.
The operation is meant to repair the damage caused by glass particles that entered the eye after bullets shattered his windscreen and other windows during the shooting. He also needed to get the screws on his left jaw tightened so he is able to function. All these were expensive procedures that he could not afford since he was no longer working, he said.
He was subsequently cross-examined by defence lawyers, Advocates Molati and Mohau.
The two lawyers asked Mr Mutungamiri who wrote the Scrutator, a popular satirical column in the Lesotho Times. However, the former editor declined to answer the question. Instead, he said as the editor, he was responsible for every article carried by the newspaper.
The defence lawyers also wanted Mr Mutungamiri to admit that Scrutator had gone beyond being a satirical column but was instead “insulting” people. However, he refrained from commenting as the word insult meant different things to different people.
The conclusion of the trial will help achieve long-delayed justice for Mr Mutungamiri and the Lesotho Times. Shortly before his July 2016 shooting, the Lesotho Times had endured a difficult during which then Lesotho Times journalist, Keiso Mohloboli, was summoned for interrogation by police and military officials in connection with a story about the Lesotho Defence Force (LDF).
The story was about the negotiations for an exit package for the then army commander, Kamoli, in line with a SADC recommendation for his removal from post.
Lesotho Times publisher, Basildon Peta, was also summoned for questioning and interrogated by a group of about 15 heavily armed mostly military police and intelligence officials. He was subsequently charged with criminal defamation arising from a complaint laid against the newspaper by Lt-Gen Kamoli over the satirical column, Scrutator. Mr Peta fought the charges and won a landmark victory when the Constitutional Court outlawed criminal defamation in 2018.
Commenting on the start of the trial, Mr Peta said it was commendable that those accused of shooting a journalist for simply doing his work had been arrested and arraigned before the courts.
However, he last night expressed disappointment at the spectre of more delays reiterating the old age dictum that justice delayed is justice denied.
“It’s high time we have closure to this case. If these people did not commit the crime, why are they simply not taking the stand and say so. Why this resort to technicalities to avoid taking the stand. What’s so special about their defence strategy warranting them to seek to avoid trial? It’s either they are innocent or guilty. That can only be ascertained if they stand trial…The fact that they are seeking to avoid trial on some clumsy technicality means they have something to hide…,” Mr Peta said.
