High profile trials in limbo

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as Judge Hungwe’s contract expires

Mohalenyane Phakela

THE high-profile trials of politicians, serving and former members of the security agencies are in limbo after the expiry of Judge Charles Hungwe’s contract on 31 October 2021.

The news of the expiry of Justice Hungwe’s contract was broken by Chief Justice Sakoane Sakoane who said that he had failed in his quest to ensure that the Zimbabwean judge remained on the job to complete his cases.

Even though the constitution allowed a judge to complete his trials even after his contract had expired, the stumbling block to Justice Hungwe completing his cases, was the government’s failure to commit to paying his salary, Justice Sakoane said.

But the Chief Justice’s explanation is somewhat perplexing as the government has never been responsible for the payment of Justice Hungwe’s salary. As correctly pointed out by Law and Justice Minister, Lekhetho Rakuoane, in a subsequent interview with the Lesotho Times, the salaries of Justice Hungwe and other foreign judges recruited to preside over the high-profile cases are paid by the European Union (EU) and not by the Lesotho government.  However, the EU cannot contract directly with the judges as that is the role of the government via the JSC. That was nevertheless not done, casting serious doubts on Justice Sakoane’s claims about lack of funds.

The JSC, chaired by Justice Sakoane, was supposed to have negotiated the renewal of Judge Hungwe’s contract well before it expired. Moreso after the EU had long intimated that it was prepared to continue paying Judge Hungwe’s salary until he completed his work. All that was not done, raising speculation that there might be serious politics at play to frustrate Justice Hungwe, the only foreign judge remaining on the high-profile cases, to quit and follow his two colleagues from Botswana who opted to abandon their work because of numerous obstacles thrown their way.

Basotho National Party (BNP) leader Machesetsa Mofomobe fired the first public salvo this week, accusing his partners in the ruling coalition of playing politics to sabotage the trials and “free their military friends” from the clutches of the law.

Mr Mofomobe recorded a video wherein he accused Advocate Rakuoane of conniving with the Democratic Congress (DC) in a plot to collapse the high-profile trials in order to “free their military friends” including the murder and treason accused former army commander, Tlali Kamoli.

The plot involved ensuring Justice Hungwe’s contract was not renewed as well as terminating South Africa’s Shaun Abrahams’s contract to prosecute the cases, he claimed (See story below).

Adv Rakuoane nonetheless insists that the renewal of Justice Hungwe’s contract is the JSC’s baby.

Justice Hungwe was engaged by the government and JSC in January 2019 to try the high-profile trials involving politicians and members of the national security agencies.

At the time, then Justice and Correctional Services Minister, Mokhele Moletsane, said while the local judges were competent enough to try the cases, the government and SADC felt it necessary to engage foreign judges because the cases in question were politically sensitive. He said the verdicts of the foreign judges were less likely to be viewed as biased.

With the help of SADC, the government eventually secured the services of Justice Hungwe who was later joined in August 2019 by two Botswana judges, Kabelo Lebotse and Onkemetse Tshosa. The judges’ salaries were paid by the EU.

However, Justices Lebotse and Tshosa resigned in May 2020 and August 2021 respectively, complaining of poor working conditions, among other things. They were also unhappy about the delaying tactics deployed by the suspects to stall the trials.

Their resignations left Justice Hungwe with the huge task of presiding over some of the high-profile trials by himself. Some of the cases, including the treason and murder trial of politicians, Mothetjoa Metsing and Selibe Mochoboroane, Lt-Gen Kamoli and others, were allocated to local judges including Justice Sakoane.

Justice Hungwe was left to continue with Lt-Gen Kamoli and eight other soldiers’ trial for the June 2015 murder of army commander, Maaparankoe Mahao.

He also continued with Lt-Gen Kamoli and four other soldiers’ attempted murder trial over the January 2014 simultaneous bombings of the houses of former First Lady, ‘Maesaiah Thabane, and former Police Commissioner, Khothatso Tšooana.

He is also supposed to preside over the trial of Senior Superintendent Thabo Tšukulu and three other police officers for the March 2016 murder of Police Constable (PC) Mokalekale Khetheng.

All these trials are now in limbo due to the failure to renew his contract ahead of its known expiry date. The JSC’s failures in this regard blends perfectly well with the Stalingrad strategy of Lt-Gen Kamoli and his fellow suspects to sabotage the trials while seeking a political solution to get themselves out of the hook. A proposed peace and unity law under which criminal suspects would be released if they testify truthfully before a peace commission appears to be what they are now clamouring for.

On Monday, Justice Hungwe was conspicuous by his absence from the Mahao murder trial.

Justice Sakoane appeared in his place but only to inform the suspects that Justice Hungwe’s contract had expired. He said he had done everything he could to get Justice Hungwe to continue with the trial. But his efforts had so far hit a brick wall due to the government’s failure to pay the judge’s salary, he said.

“You are aware that I am not presiding in this trial,” Justice Sakoane said.

“The circumstances which have caused me to conduct the business of today are rather novel and peculiar. I think they have never happened in any jurisdiction that I am aware of.

“The presiding judge in this trial is serving in this jurisdiction on the basis of a contract which expired on 31 October 2021. This means that, as matters stand, he does not have any contract to continue to preside on this matter. But according to section 120(6) of the constitution, a judge either permanent or acting, whose tenure of appointment comes to an end before he or she concludes the business in the court, is obligated to finish the business. If there is a part-heard matter he is obliged to finish it and if there is a judgement pending, he is obliged to deliver it.

“But we are in an unchartered territory in regard to this matter. Not because the judge is unwilling to continue with this matter, but because the Crown is not in a position to honour its financial obligation as contained in the terms of appointment of the judge. I, as the head of the judiciary, have endeavoured to do all that is possible to assist in resolving this matter. But, as matters stand, my efforts have not yielded any success. The judiciary does not hold the purse nor the sword.  What I simply mean is that the funds that the judiciary is appropriated come from parliament, in other words we get our budget from parliament.  If parliament has under budgeted, there is nothing we can do in the circumstances.

“In my discharge of my duties as the head of the judiciary, I asked you to appear in open court so that I could convey this state of affairs. I am doing this as part of the public record because I do not want the misinterpretation of facts by the court of public opinion. Whatever views expressed should be on the basis of facts. The accused are facing capital punishment and they deserve the truth and nothing but the truth. I didn’t anticipate that this week I would be doing what I am doing today. I am not conducting any trial but discharging my duty as the head of the judiciary,” the chief justice said.

The Director of Public Prosecutions (DPP), Hlalefang Motinyane, then told the court that she had engaged the Attorney General, Rapelang Motsieloa, to engage the government over Justice Hungwe’s contract.

“This matter is part heard by Justice Hungwe and it was supposed to continue with the evidence of the second witness (Retired Colonel Thato Phaila). The second witness is still under oath and was to be re-examined. Where a judicial officer is unable to complete his duty due to circumstances such as this one, and if there is no solution, justice dictates that the matter should start de novo (afresh).

“The government should be made aware of the current situation. I have informed the Attorney General and he said he will inform the Minister of Law and Justice (Lekhetho Rakuoane) who will inform the cabinet. Hopefully we will have an answer on the way forward,” DPP Motinyane said.

In the subsequent interview with the Lesotho Times, Mr Rakuoane said although he was aware of the expiry of Justice Hungwe’s contract, there was nothing the government could do about it since it was a matter that had to be dealt with by the JSC and the EU.

He said the EU was eager to continue paying Justice Hungwe’s salary but he did not know how far it had gone in its discussions with the JSC for the renewal of his contract.

“Justice Hungwe’s contract is between him, the JSC and the European Union. I can confirm that the EU is willing to continue funding his salary and the JSC wants him to continue with his work. The JSC and the EU are better placed to talk about the status of his contract,” Adv Rakuoane said.

On its part, the EU said it had committed to paying Justice Hungwe’s salary until February 2022. It said was prepared to continue paying him until he had finalised his cases.

“The European Union is committed to supporting free and fair trials in Lesotho,” the EU said in a statement to the Lesotho Times yesterday.

“We believe that the process needs to be impartial in order for the accused to have equal hearing opportunities. As you are aware, we have been supporting this since 2019, albeit with its challenges- including those brought about by the Covid-19 pandemic and the subsequent lockdowns. While our contract with SADC came to an end in March 2020, we have continued supporting this process through UNDP since April 2020 under agreements, which we hope to continue. This includes the completion of cases overseen by Justice Hungwe.

“With regards to Justice Charles Hungwe’s contract, we have already signed with UNDP a new agreement providing the resources to allow the extension of the contract until the end of February 2022. At this stage, we are already considering the possibility and discussing the conditions of an extension of the agreement with the UNDP so that, depending on how far Justice Hungwe cases will have progressed, his contract can continue beyond February 2022,” the EU said.

However, authoritative government and judicial sources said although the EU was eager to continue funding Justice Hungwe’s salary to enable him to see the trials to finality, everything else hinged on the JSC and the government’s willingness to renew the Zimbabwean judge’s contract to work in Lesotho. Both the EU and UNDP cannot contract directly with the judge. That is a sole responsibility of the government via the JSC, which now faces demands to explain its lethargy.  The EU’s statement also rebuffs any claims that lack of funds is the main reason for the failure to renew Judge Hungwe’s contract.

The sources said that the EU also wanted assurances that the government would retain the services of South African Advocate, Shaun Abrahams, the lead prosecutor in the high-profile trials. The retention of both Justice Hungwe and Advocate Abrahams is seen by the EU as crucial to avoiding further lengthy delays to the already much-stalled trials. Further delays would become inevitable if the trials are taken over by new judges and prosecutors.  It would also help eliminate perceptions of bias if the cases are not reassigned to local judges, the sources said.

It remains to be seen if the government will renew the contract of Adv Abrahams as it views his salary as exorbitant. Unlike Justice Hungwe, Adv Abrahams is paid by the government.

He has been paid close to M10 million since his 2019 appointment. He was hired by the previous Thomas Thabane-led governing coalition. However, the current Moeketsi Majoro-led coalition is mulling the cancellation of his contract or “reviewing it so that it best serves the interests of Basotho”, according to the principal secretary (PS) in the Ministry of Law and Justice, Retšelisitsoe Mohale, in a weekend interview with the Sunday Express.

PS Mohale said the government was not happy with Adv Abrahams’ “huge” wages and it was considering terminating his contract in favour of cheaper alternatives.

He said Minister Rakuoane had tasked him to look into ways to reduce the spending and this included the possibility of terminating his contract.

But according to the government and judicial sources, the EU is against terminating Adv Abrahams’ contract. Terminating his contract would mean the engagement of new prosecutors who would have to acquaint themselves with the various cases. This would only serve to further stall the much-delayed trials which have been pending since 2017 when Lt-Gen Kamoli and some of the suspects were arrested and detained.  Other sources say what Advocate Abrahams has been paid for his efforts is not as much as other qualified South African counsel would have charged over the same period.

 

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