Judgment reserved in detained soldiers’ case

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army-bootsTefo Tefo

South African lawyer Advocate Anna-Marie de Vos yesterday urged High Court judge Justice Molefi Makara to review and set aside the document which established the Court Martial to try 23 mutiny suspects.

Advocate De Vos was representing the 23 detained soldiers who lodged an application before the High Court calling for an order to set aside the document prepared by Defence and National Security minister Tšeliso Mokhosi.

In the application, the soldiers, who are in Maseru Maximum Security Prison, save for one under open arrest, argue Court Martial proceedings against them were unlawful and in violation of the Southern African Development Community’s (SADC) decision to put it on hold until the its on-going Commission of Inquiry has concluded its probe.

The applicants include Brigadier Mareka, Brigadier Motoa, Colonel Stemere, Colonel Kolisang, Major Makhetha, Captain Chaka, Second Lieutenant Mohasi, Sergeant Mokhobo, Sergeant Semakale, Sergeant Lekhabunyane, Corporal Mokhoro, Corporal Letsilane, Corporal Lipoto, Corporal Manaka, Corporal Mohatlane, Corporal Chele, Corporal Motseko, Lance Corporal Jobo, Lance Corporal Molefi, Lance Corporal Makhooane, Private Pama, Private Bolofo and Private Ralitlemo. Brigadier Thoso Mareka has since been released due to ill-health but is under ‘open arrest’.

The soldiers were arrested by their colleagues between May and June this year. They cite LDF Commander Lieutenant General Tlali Kamoli, Defence and Mr Mokhosi, Court Martial President Major General Mojalefa Letsoela, chairperson of the Commission of Inquiry Justice Mpaphi Phumaphi, and Attorney General Tšokolo Makhethe as respondents in the case.

In her address, Advocate de Vos urged Justice Makara to suspend Court Martial proceedings against the 23 soldiers until the ongoing proceedings of the SADC Commission of Inquiry are finalised.

Advocate de Vos said the application is not meant to permanently stop the Court Martial proceedings, but enable the Commission finalise its mandate as it is dealing with the same facts that would be canvassed before the Court Martial.

“The charge sheet alleging the offences against the detainees was signed.

“And the convening order constituting the Court Martial was issued on 13 August 2015.

“The respondents knew very well that the Commission of Inquiry was going to be set-up.

“Therefore, I submit that it is highly prejudicial to the applicants that there is a commission of inquiry proceeding alongside the Court Martial.

“It means there are two proceedings dealing with one thing,” she said.

She said Mr Mokhosi issued an order to convene the Court Martial when SADC had already resolved its proceedings should be halted to give the commission a chance to investigate circumstances that led to the death of Brigadier Maaparankoe Mahao on 25 June this year, as well as the alleged kidnapping of some members of the LDF.

“Obviously, when the minister decided to convene the Court Martial, it was before the meeting of 16 August 2015 of SADC where the decision to continue with the Court Martial was made.

“Now, when there are two proceedings on one thing, it results in some problems,” she said.

She further accused LDF officials of refusing to serve summons to some detained army officers to appear before the ongoing SADC commission to give their testimony.

“Obviously, there are some detained officers interested in testifying before the Commission.

“Another reason advanced by the respondents to proceed with the Court Martial is that the law provides that the suspects should not be detained for more than 14 days without being brought to the court.

“If that is true, the court could have been convened long before the SADC troika meeting.

“The review order we are seeking before this honourable court is based on the irrationality of the decision to convene the Court Martial.

“The charges leveled against the applicants are similar to issues to be investigated by the Commission of Inquiry.

“You cannot have two similar processes running side-by-side,” she argued.

She also dismissed the army authorities’ argument that if the detained soldiers are released from detention they would abscond.

“The respondents don’t give a good reason why the soldiers are still kept in detention.

“They only say some have absconded. It cannot be said that since ‘A’ has run away, ‘B’ would also abscond.

“The decision to keep them in detention is unlawful.

“If his lordship finds that keeping them in detention or under close arrest is irrational, then his Lordship will order their release.

“This is because there are no facts indicating that they are likely to abscond.

“There is further no evidence showing that they would interfere with the witnesses,” she said.

Advocate de Vos also said the detained soldiers are not allowed to meet their lawyers.

But the lawyer representing the respondents Advocate Motiea Teele (King’s Counsel) denied that the detained soldiers were denied access to their legal representatives.

“What happened is that the lawyers wanted to see the detainees as a group.

“The officer in charge at the detention centre, Lieutenant Colonel Phaila, in his affidavit, said the lawyers wanted to see all the detainees at once.

“But he told them that they could only see them one-by-one for security reasons; not that he denied them access to their legal representatives,” he said.

Advocate Teel argued that the applicants’ reliance on the Commission to halt the Court Martial proceedings was wrong because it was established by Lesotho laws, although composed of members from SADC countries.

“In our laws, there is nothing called the SADC Commission.

“It might be funded by SADC or the SADC might have decided that the Commission be established, but the Commission we have is established by the legislation of this land.

“The way the applicants approached this matter is like there is a colonial arrangement of some sort that SADC just imposes here.

“The facts advanced to support the application are that the government is bound by the SADC resolutions,” he said.

He further dismissed allegations that summons sent to the detained soldiers to appear before the commission were refused.

He said: “Section 16, subsection four of the Public Inquiries Act of 1994 says a person shall not be compelled to testify in the issue to which he stands charged, unless the charges have been disposed of.

“This must take precedence over the Commission unless we say this is a super-commission which operates outside the law.”

He said the detained soldiers should challenge Court Martial proceedings before the same Court Martial.

“They can challenge the Court Martial in its sitting,” he said.

He said there are other legal procedures that could have been used to investigate the death of Brigadier Mahao.

“There is a procedure that could have been followed to investigate Mr Mahao’s death and that process is called an inquest.

“This is where people are subpoenaed, starting with those who were present at the scene not people who are alleged to have killed the deceased,” he argued.

He said the Prime Minister Pakalitha Mosisili called for a commission by people outside Lesotho “only because he wanted transparency in the investigation of the circumstances surrounding his death”.

However, Justice Makara reserved judgment to 30 September.

Advocate de Vos addressed the court on behalf of all lawyers who represented the 23 soldiers namely Advocates Haae Phoofolo KC, Christopher Lephuthing, Koili Ndebele.

They were instructed by Attorneys Khotso Nthontho and Tumisang Mosotho, while the respondents were represented by Advocate Teele.

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