- high-profile trials thrown into doubt as only one foreign judge remains on High Court bench
Mohalenyane Phakela
BOTSWANA Judge Onkemetse Tshosa, who was recruited to preside over high-profile criminal cases, has resigned.
He becomes the second judge to resign after his countryman, Justice Kabelo Lebotse, who threw in the towel last year over what authoritative judicial sources said was inadequate remuneration and poor working conditions.
The judiciary’s public relations officer, ‘Mabohlokoa Mapikitla, yesterday confirmed Justice Tshosa’s resignation, saying it was due to personal reasons which the judiciary could not disclose.
“We can confirm that Justice Tshosa resigned with effect from I August 2021,” Ms Mapikitla said in an interview with the Lesotho Times.
“The reasons for his departure are personal to him so he is the only one at liberty to disclose them. The cases which were before him will be allocated to other High Court judges and preparations to do that are underway,” she added.
However, well-placed government and judicial sources said Justice Tshosa had been frustrated by the frequent delays in the trials he is supposed to preside over. These include the treason and murder trial of politicians Mothetjoa Metsing and Selibe Mochoboroane. They are accused alongside former army commander, Tlali Kamoli, Captain Litekanyo Nyakane and Lance Corporals Leutsoa Motsieloa and Motloheloa Ntsane.
Justice Tshosa was appointed in August 2019 to preside over high-profile trials involving politicians and members of the national security agencies.
He was appointed alongside his countryman Justice Lebotse and Zimbabwean Judge Charles Hungwe. The trio was allocated the said high profile matters.
However, Justice Lebotse resigned in last May over poor working conditions.
All three judges had complained of inadequate remuneration, lack of medical aid cover and “non-provision of essential tools of trade”, authoritative judicial sources said at the time.
Justices Tshosa and Hungwe had also informed the JSC of their intention to quit on 31 July 2020 over poor working conditions.
Their planned departure was only averted after their salaries were doubled before they could leave.
Since, then the two judges have faced numerous frustrations chiefly from the litigants who have tried various methods to stop their trials.
Late last year, Lieutenant General (Lt-Gen) Kamoli teamed up with other serving and former members of the security agencies to petition Chief Justice Sakoane Sakoane to look into the fitness of Justices Tshosa and Hungwe’s fitness to preside over their cases.
Even when their request was thrown out by Justice Sakoane, the two judges were still subjected to numerous litigations seeking their recusal on various grounds. The dismissal of each recusal application has always been followed by an appeal or a fresh application.
These applications and delays in the trials- according to the sources-have forced Justice Tshosa to throw in the towel.
“Justice Tshosa is very particular about his reputation,” said one source.
“He felt he was being personally attacked through the numerous complaints which were leveled against him by the accused in the matters he presided over. Even as he leaves, there is a pending recusal application, challenging his competency as a judge.
“Apart from the recusal applicants, he often complained that here (in Lesotho) there were too many delaying tactics by suspects. He complained of frivolous applications which delayed the delivery of justice, thus frustrating him from delivering on his mandate,” the source said.
Although Ms Mapikitla suggested that Justice Tshosa’s departure would not have any significant impact, some government and judicial sources said his resignation throws the finalisation of the high-profile cases into doubt.
“Tshosa’s resignation is a huge blow. It throws the finalisation of the high-profile cases into doubt because the government and the Judicial Service Commission (JSC) will not be able to find another foreign judge to replace him. They already failed to replace Lebotse when he resigned last year.
“This leaves Hungwe as the only judge presiding over some of the cases. He too is unhappy with the conduct of the suspects and the seeming laxity in the system which allows them to move back and forth relaunching recusal and other applications to stop their trials even when such applications have already been dismissed. There is no saying whether Hungwe will last the distance,” a source said.
Another source said, “even when they say that Justice Sakoane and other local judges will take over the cases, this only cold comfort because in the first place, foreign judges were brought in because it was felt only they would deliver generally acceptable verdicts”.
The source was reacting to reports that Justice Sakoane will take over the treason and murder trial which had been allocated to Justice Tshosa.
Messrs Metsing and Mochoboroane are challenging the Director of Public Prosecutions (DPP), Hlalefang Motinyane’s February 2020 decision to amend the charge sheet and join them to the trial as co-accused.
Justice Sakoane initially heard the application last year but declined to make a ruling, saying it must be argued before the trial judge, Tshosa.
It had been anticipated that the application would be argued before Justice Tshosa on Monday. However, one of the defence lawyers, Advocate Napo Mafaesa, told the Lesotho Times that they had been told that Justice Sakoane would take over the matter since Justice Tshosa had resigned.
“We have been told to come back on 4 August 2021 as the chief justice has taken over the case,” Adv Mafaesa said this week.
The treason charge is in connection with the 30 August 2014 attempted coup against the first government of former Prime Minister Thomas Thabane. The murder charge is in connection with the fatal shooting of Police Sub Inspector Mokheseng Ramahloko during that same attempted coup.
Apart from the treason and murder case, Justice Tshosa was also presiding over the case of 10 soldiers accused of murdering three civilians in 2017 and throwing them into Mohale Dam.
The 10 are Major Pitso Ramoepane, 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 Lt-Gen Kamoli, who, in October 2020, unsuccessfully petitioned the Constitutional Court 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 wanted Justices Tshosa and Hungwe to be declared unfit to preside over their cases. However, the Court of Appeal on 14 May 2021 dismissed their application.
Major Ramoepane again sought Justice Tshosa’s recusal, arguing he that there was new evidence showing that was unfit to try them because he was allegedly convicted of assaulting a police officer in his home country.
Justice Tshosa heard the recusal application on 25 June 2021 and reserved judgement. The case is pending.
The other case that Justice Tshosa was seized with the murder trial of Captain Nyakane and four other soldiers. His co-accused are Lance Corporals Khauhelo Makoae and Sebilo Sebilo as well as Privates Tšepo Tlakeli and Thebe Tšepe.
They stand accused of murdering Thabang Mosole, Monyane Matsie and Pakiso Ntala Letatabe at Ha Motanyane, Mafeteng in 2012.
Meanwhile, the European Union Ambassador to Lesotho, Christian Manahl, has described Justice Tshosa’s resignation as “regrettable”.
Dr Manahl said they were yet to be officially informed of Justice Tshosa’s resignation hence he did not know the reasons for the move.
He however, said the resignation could not have been due to remuneration issues because the conditions of service of the foreign judges had been improved after being taken over by the United Nations Development Programme (UNDP).
“The implementation of the programme under which the judges were sent to Lesotho was initially managed by the Southern African Development Community (SADC), which also determined their conditions of service,” Dr Manahl said.
“The SADC Secretariat had challenges which prompted a consensual transfer of the responsibility of implementation to the United Nations Development Programme (UNDP). In the context of this transfer, the conditions of service were significantly improved.
“We were under the impression that the two remaining judges (Tshosa and Hungwe) were happy with the new conditions. After all, they both continued for a year. The European Union Delegation has not been officially informed of the resignation of Judge Tshosa and we therefore do not know what motivated his decision. We regret his departure, but we believe that the conditions of service are fair and appropriate, in comparison with the salaries and benefits of Lesotho’s Judiciary.
“To the best of our knowledge, the hearings for the cases previously presided by Judge Onkemetse Tshosa have not yet started, so these cases can be taken over by Judge Hungwe or any other judge of Lesotho’s High Court. The departure of Judge Tshosa should not disrupt the judicial process,” Dr Manahl added.
Despite his optimism, the high-profile cases, judicial sources insist the high-profile cases face an uncertain future after the resignation of Justice Tshosa leaving Justice Hungwe as the only foreign judge.
“Remember the foreign judges were recruited due to fears that the verdicts of local judges would be called into question. So even if these cases go ahead under local judges, there will be problems whichever the verdicts go,” a source said.
The government first approached SADC members states in 2018 for help in securing foreign judges to try the high-profile cases.
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 still felt it necessary to engage foreign judges because the cases in question were politically sensitive. He further said that 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 Justices Hungwe Tshosa and Lebotse. The judges’ allowances are paid from a fund sourced from the EU.
