Mohalenyane Phakela
PROMINENT politicians Mothetjoa Metsing and Selibe Mochoboroane will have to wait longer to know whether or not their bid to avoid trial for murder and treason succeeds.
This after Chief Justice Sakoane Sakoane this week declined to rule on their application to stop the state from trying them and referred the case to Botswana Judge Onkemetse Tshosa to make a ruling on the matter.
Justice Tshosa is the presiding judge over the murder and treason trial of former army commander, Lieutenant General (Lt-Gen) Tlali Kamoli, Captain Litekanyo Nyakane as well as Lance Corporals Motloheloa Ntsane and Leutsoa Motsieloa.
Last February, the Director of Public Prosecutions, (DPP) Advocate Hlalefang Motinyane, resolved to join former Deputy Prime Minister Metsing and current Development Planning Minister Mochoboroane to the trial alongside Lt-Gen Kamoli and others for treason and murder which they allegedly committed in 2014.
Lt-Gen Kamoli and his fellow soldiers are currently in remand prison awaiting trial for the murder of Police Sub-Inspector Mokheseng Ramahloko which occurred during the attempted coup against the first government of former Prime Minister Thomas Thabane on 30 August 2014. The treason charges stem from the same attempted coup.
DPP Motinyane amended the charge sheet in February 2020 to include treason and joined Messrs Metsing and Mochoboroane to the trial.
However, the trial failed to proceed after the duo filed a 25 February 2020 constitutional court application to stop the state from trying them on the grounds that clause 10 of an October 2018 SADC-brokered government-opposition agreement shielded them and other politicians from prosecution until after the implementation of the multi-sector reforms.
They lost the case in November 2020 but immediately filed an urgent High Court application on 24 November 2020 challenging the decision to join them to the trial being presided over by Justice Tshosa.
This time they argued they could not be joined to the case as it was already in progress since Lt-Gen Kamoli and others had already been formally charged with the crimes. They also argued that they could not be tried in the High Court without first being remanded in the magistrates’ court as demanded by the Criminal Procedure and Evidence Act.
Their application was before Justice Sakoane who on Tuesday ruled that they should present their case to Justice Tshosa.
Justice Sakoane said as the trial judge, Justice Tshosa was best placed to preside over Messrs Metsing and Mochoboroane’s application.
The chief justice said the reliefs sought by the two politicians were directed at the February 2020 amended charge sheet in a trial before Justice Tshosa and therefore “all the objections must be decided by him (Justice Tshosa)”.
“The impugned joinder of the applicants (Metsing and Mochoboroane) in CRI/T/0001/2018 (treason and murder trial) can and should be pursued before the trial judge,” Justice Sakoane ruled.
“It is also proper and convenient for the applicants to raise all objections before the trial judge.
“It would not be right for me sitting as a non-trial judge to pronounce on one or all of the issues arising or connected to the impugned decision of the Director (Motinyane) in relation to the indictment filed on 17 February 2020. The proper thing to do is to refer this application to the trial judge so that the applicants can ventilate their objections in relation to the indictment in respect of which the Director seeks to have them joined.
“In the result, the application is referred to the trial judge for determination,” Justice Sakoane added.
This means that the actual trial for treason, which was supposed to begin sometime this month, will have to wait until after Justice Tshosa has ruled on Messrs Metsing and Mochoboroane’s application.
It is not clear when Justice Tshosa will preside over the politicians’ application as he is yet to return to the country from his home country (Botswana) where he had gone for the Christmas holiday.
