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Fresh headache for Judge Tshosa

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  • as murder-accused soldier files fresh lawsuit for his recusal from trying him

Mohalenyane Phakela

BOTSWANA Judge Onkemetse Tshosa has a fresh headache to deal with.

This after murder-accused soldier, Major Pitso Ramoepane, filed a new High Court application for his recusal from trying him and his co-accused.

In his application filed on Tuesday, Major Ramoepane rehashes his and other accused soldiers’ old arguments that Justice Tshosa is unfit to try them because he was allegedly convicted of assaulting a police officer in his home country.

The net effect of the new application is to delay Major Ramoepane and nine others’ trial for allegedly murdering three civilians in in Maseru in 2017. The trial was supposed to begin on Tuesday but Justice Tshosa had to postpone it to a date that is yet to be decided. The judge said he will first hear Major Ramoepane’s application on 20 April 2021.

Major Ramoepane’s co-accused are Brigadier Rapele Mphaki, Sergeant Lekhooa Moepi, Captain Mahlehle Moeletsi, Lance Corporal Mahlomola Makhoali and Privates Nthatakane Motanyane, Motšoane Machai, Liphapang Sefako, Nemase Faso and Tieho Tikiso.

They allegedly strangled Lekhoele Noko, Molise Pakela and Khothatso Makibinyane at Setibing in rural Maseru on 16 May 2017 and dumped them in the Mohale Dam.

The soldiers allegedly kidnapped and murdered the three men after the trio had just been released from police custody where they were detained in connection with a shooting incident that occurred at the Maseru border gate on 13 May 2017.

They were initially supposed to stand trial on 7 December 2020 but the matter was postponed to allow the Constitutional Court bench of Justices Tšeliso Monapathi, Moroke Mokhesi and Keketso Moahloli to rule on their application for a permanent stay of proceedings.

The 10 are part of a group of serving and former members of the security agencies including former army commander, Lieutenant General (Lt-Gen) Tlali Kamoli, who, in October 2020, petitioned the Constitutional Court (Constitutional Case No. 17/2020) to have their trials permanently stopped on the grounds that their trials had taken too long to begin in apparent violation of their rights to speedy trials.

They also want two foreign judges engaged by the government and judiciary to preside over their numerous murder and attempted murder trials to be declared unfit to preside over their cases. Justice Tshosa and his Zimbabwean counterpart, Justice Charles Hungwe are the two foreign judges who were recruited in 2019 with the help of SADC and the European Union to preside over the high-profile trials of politicians, serving and former members of the security agencies.

These include the murder and treason trial of Lt-Gen Kamoli and others. However, the trials have so far failed to take off due to numerous court litigations by the accused to permanently stop them. Even when they have lost their applications in the High Court, they have either turned to the Constitutional Court or Court of Appeal thus causing numerous delays to the trials.

But Justice Tshosa has decided to proceed with the trials. Three weeks ago, he ruled that he will proceed with the trial of the 10 soldiers on the grounds that even though they have a pending constitutional application, the same court has not issued any interim order to stop the trials from proceeding.

On 25 March 2021, the judge even entered a not guilty plea on behalf of Major Ramoepane and his co-accused. This after they had repeatedly pleaded that Justice Tshosa lacked the jurisdiction to try them.

On Tuesday, Major Ramoepane told the court that Justice Tshosa’s refusal to accept his plea of lack of jurisdiction was one of the reasons why he had filed a fresh application for his recusal.

“I should state that the crown had not objected to my pleading lack of jurisdiction or to the plea of lack of jurisdiction,” Major Ramoepane said in his court papers.

“Surprisingly, it was the court that interjected and raised the provisions of section 160 (of the Criminal Procedure and Evidence Act) saying the pleas as to jurisdiction should have been raised on notice. I verily aver that this is another indication of the court’s lack of impartiality in these proceedings by advancing the prosecution’s cause. The court descended from the bench and entered the fray. I contend therefore that his Lordship Tshosa has clearly demonstrated lack of impartiality.

“All this point to the fact that the court is not bringing an impartial mind to bear in hearing my case. Wherefore I pray that his Lordship Tshosa recuse himself from my case,” Major Ramoepane stated.

He also rehashed the same arguments of his aforementioned constitutional application which are that Justice Tshosa was convicted in Botswana for assaulting a police officer and was therefore unfit to be a judge.

“I am of the view that Justice Tshosa’s criminal record and his resignation to evade impeachment render him unfit to hold office as a judge and to preside over my criminal trial. If his Lordship Tshosa is to preside over my trial and convict me, a reasonable accused in my position and the public out there, might view my conviction as revenge or retaliation by his Lordship against me for putting it in the public domain that Justice Tshosa was convicted of a criminal offence and evaded impeachment.

“I verily aver that whichever way the case against me eventually goes, for as long as it is presided over by Tshosa AJ under the circumstances of the pendency of constitutional case no.17/2020, the administration of justice is bound to be brought into disrepute. In the event that the application in constitutional case succeeds, the proceedings of the criminal trial will be tainted.”

Justice Tshosa then deferred the trial. He said he will hear Major Ramoepane’s application on 20 April 2021.

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