FORMER army commander Tlali Kamoli’s co-accused soldiers have petitioned the Court of Appeal to move their attempted murder trial from the High Court to the magistrates’ court.
The attempted murder charges are in connection with the 27 January 2014 simultaneous bombings of the homes of former First Lady ‘Maesaiah Thabane and former police commissioner Khothatso Tšooana.
Lt-Gen Kamoli’s co-accused are Major Pitso Ramoepane, Captain Litekanyo Nyakane, Sergeant Malefane Heqoa and Corporal Mohlalefi Seitlheko.
Their trial was supposed to have proceeded this week before Judge Charles Hungwe. But this was not to be after Lt-Gen Kamoli’s co-accused indicated their intention to challenge the judge’s 15 June 2021 ruling dismissing their application to have the trial moved to the magistrates’ court.
Adv Hopolang Nathane, who represents Corporal Seitlheko, this week told Justice Hungwe that they intended to appeal his decision.
“We only received the copy of the judgement on Thursday (1 July 2021) and we have not been able to go through it. However, the preliminary instructions from my client is that we note an appeal.
“What is left is for us to acquaint ourselves with the judgement in order to draw the grounds of appeal,” Adv Nathane said.
The other defence layers, Advocates Napo Mafaesa and Kabelo Letuka, who represent the other suspects concurred with Adv Nathane. However, Lt-Gen Kamoli’s lawyer, Adv Letuka Molati, did not say whether his client would also appeal Justice Hungwe’s decision not to move their trial to the magistrates’ court.
Adv Molati instead complained about the cold in the courtroom and asked Justice Hungwe to order the court officials to ensure the room had heating to provide warmth.
“The first thing is to apply for His Lordship (Hungwe) to order that this court be supplied with devices for warmth. According to a device I am using, the temperature in this room is minus five degrees Celsius,” Adv Molati said.
“This is a trial during a cold winter but the government has only provided the court officials with heaters. The constitution provides that a fair trial should be at the expense of the government.”
However, Justice Hungwe dismissed Adv Molati, saying he should raise the issue with the office of the Registrar of the High Court and Court of Appeal, Adv ‘Mathato Sekoai.
The judge then postponed the matter to 2 August 2021. On that day, he will decide whether or not to allow the accused soldiers to appeal to the apex court.
All the accused face 17 charges of attempted murder, aggravated assault and causing the risk of injury or death. Lt-Gen Kamoli faces additional charges of issuing illegal orders and the obstruction of justice.
When the indictment was first read out to them on 10 June 2021, they all pleaded that the High Court did not have jurisdiction to try them.
Their lawyers argued that their clients should instead be tried by the magistrates’ court which also has powers to try attempted murder cases.
Adv Molati had argued that he did not understand how Lt-Gen Kamoli and others’ case was before the High Court when another attempted murder trial of the four soldiers accused of the July 2016 attempted murder of former Lesotho Times editor, Lloyd Mutungamiri, was before the Maseru Magistrates’ Court. The four accused are Brigadier Rapele Mphaki, Colonels Khutlang Mochesane, Nyatso Tšoeunyane and Maribe Nathane.
Other defence lawyers echoed Adv Molati’s sentiments, adding that magistrates were competent to preside over the matter.
On his part, the lead prosecutor, South African Adv Shaun Abrahams, argued that the Director of Public Prosecutions (DPP) had powers to decide which court should prosecute a particular case. He also argued that the High Court had unlimited jurisdiction in criminal cases hence it could hear the matter.
Delivering judgement on 15 June 2021, Justice Hungwe said the accused and their lawyers had failed to prove why they could not be tried by the High Court. He also said they should have challenged the High Court’s jurisdiction to try them when the charge sheet was filed in 2018.
He said the High Court had jurisdiction to hear the matter and therefore dismissed the application.
Lt-Gen Kamoli is accused of various crimes including murder and treason. He and his co-accused have previously filed several unsuccessful applications to stop the prosecutions.
Judges, the prosecution, lawyers and analysts have all accused the former commander and others of making frivolous court applications to delay their trials.
Analysts have also argued that the applications are meant to delay the trials as long as possible in the hope that a new government sympathetic to Lt-Gen Kamoli and other high-profile suspects will come to power after next year’s polls and throw out their cases.
They are also said to be counting on the enactment of the National Peace and Unity Bill into law to provide for the establishment of a National Peace and Unity Commission empowered to grant them amnesty provided they testify truthfully, disclose their crimes in full and show remorse.