MASERU — High Court judge Justice Thamsanqa Nomncongo has recused himself in a case in which an army officer is challenging some provisions of the military law.
The army officer, Captain Bulane Sechele, has launched a constitutional case challenging some provisions of the Lesotho Defence Force (LDF) Act of 1996.
Sechele is challenging some sections of the Defence Act under which he has been summoned to appear before a court martial for breach of conduct.
He wants some provisions of the Defence Act under which he is being charged declared unconstitutional.
Justice Nomncongo told lawyers in his chambers that he could not preside over the case because he is a judge in the Court Martial Appeal Court.
Justice Kelello Guni is the president of the court.
If Sechele loses at the constitutional court he will have to face the court martial.
But if Sechele or the army authorities appeal against the court martial decision Justice Nomncongo will sit as a judge in the Court Martial Appeal Court.
It was specifically on the basis of these possibilities that Justice Nomncongo recused himself last Friday.
Justice ‘Maseforo Mahase has now been appointed to preside over Sechele’s constitutional case.
Justice Mahase will sit together with Justices Lisebo Chaka-Makhooane and Lebohang Molete.
Sechele had earlier filed a constitutional case challenging the government’s compulsory pension contributory fund but lost the case last November.
He has already appealed against the Constitutional Court decision and the Court of Appeal will deal with his appeal next month.
Prime Minister Pakalitha Mosisili, in his capacity as the defence minister, ordered the court martial to convene and try Sechele for breach of conduct.
Sechele is accused of breaching the army’s code of conduct by challenging the compulsory pension scheme for civil servants.
This, the army authorities say, was a breach of conduct in terms of some provisions of the Lesotho Defence Force Act.
The army authorities say the Lesotho Defence Force Act stipulates that Sechele should have sought the permission of army commander Thuso Motanyane before lodging the case.
But Sechele denies the state’s allegations insisting the law did not specifically define the breach of conduct.
He says the law stipulates that in order to say a soldier has been in breach of conduct it should be demonstrated that his acts amounted to criminal activities.
The constitutional case has been postponed to June 15.
If the Constitutional Court rules in his favour, Sechele’s case at the court martial will fall away.
