FORMER army commander, Tlali Kamoli, and nine others’ trial for the June 2015 murder of army commander, Maaparankoe Mahao, has been postponed for the umpteenth time.
This time the postponement is to enable the presiding Judge Charles Hungwe to hear Lieutenant General (Lt-Gen) Kamoli and others’ application for the recusal of the prosecutors, Advocates Shaun Abrahams and ‘Naki Nku. They accuse the duo of fabricating evidence to ensure that they are convicted and sentenced to death.
Lt-Gen Kamoli filed the application along with eight of his co-accused. These are Captain Litekanyo Nyakane, Capt Haleo Makara, Sergeant Lekhooa Moepi, Sergeant Motsamai Fako, Corporal Marasi ‘Moleli, Corporal Motšoane Machai, Corporal Mohlalefi Seitlheko and Corporal Tšitso Ramoholi.
Former Director of Military Intelligence, Lieutenant Colonel Tumo Lekhooa, is also accused but he did not file an application nor is he in court with others. He is being tried in absentia as he fled the country in 2017.
The Director of Public Prosecutions Adv Hlalefang Motinyane, Adv Abrahams and Adv Nku are the first to third respondents respectively in the application that will be heard tomorrow by Justice Hungwe.
The trial was halted on 8 July 2021 after the accused’s lawyers indicated that they intended to file the recusal application.
This after a state witness, Retired Colonel Thato Phaila, accused Advocates Abrahams and Nku of twisting his evidence to suit their own interests.
Lt-Gen Kamoli is represented by Adv Letuka Molati; Adv Silas Ratau represents Capt Nyakane and Capt Haleo Makara; Attorney Qhalehang Letsika represents Sgt Moepi; Adv Napo Mafaesa represents Sgt Motsamai Fako, Corporal ‘Moleli, Corporal Machai and Corporal Seitlheko while Adv Kabelo Letuka represents Corporal Ramoholi.
In his founding affidavit, Sgt Moepi accuses Adv Abrahams and Nku of twisting or fabricating evidence to ensure their conviction.
“The second respondent (Abrahams) led the second witness, prosecution witness (PW2 Rtd Col Phaila) in respect of a document, which turned out to be forged document on the evidence of PW2,” Sgt Moepi states in his affidavit.
“Despite the objection of my legal representative (Letsika) and the protestation of the witness that the document was not an authentic operational army order but looked like a funeral programme, the second respondent (Abrahams) persisted in leading the witness (Phaila) on it.
“It became apparent to the applicants that the second respondent concealed some information to them such as a proper army operational order because there can never be any doubt that PW2 (Phaila) made reference to it during pre-trial consultations. It is not clear what purpose the document that has already been placed before court which PW2 disavowed, served to achieve.
“In the premises, I have been advised that the second and third respondents (Abrahams and Nku) should have voluntarily withdrawn from this matter once PW2 made the allegations that appear on record. They should have done this so that justice is seen to be done in this matter. I aver that every moment that passes with the second and third respondents (Abrahams and Nku) proceeding with the prosecution of this case is likely to bring the administration of justice into disrepute.
“The applicants hold a strong view and perception that with every moment that passes by and the second and third respondents are prosecutors; they will continue to fabricate evidence to achieve their desired goal that we should be sentenced to death.
“They will hide evidence favourable to us. They will peddle evidence in the manner they did with the statement of PW2 (Phaila) to say things PW2 never said to them. The impression we have is that the evidence of the first witness ((Lance Corporal Mokete Halahala) has been fabricated as well. It is just that he was not brave enough in the same way that PW2 became.”
Sgt Moepi further claims that Adv Abrahams’ opening statement was also fabricated in that it says Lt-Gen Kamoli ordered the arrest of Lt-Gen Mahao on 25 June 2015 – the day he was killed. Sgt Moepi says this contradicts the evidence of Rtd Col Phaila.
“PW2 (Phaila) further did not at any time suggest that he reported to accused 9 (Lt-Gen Kamoli). On the contrary, he made it clear that all the unit commanders including himself reported and gave briefings to (then) Major General Khoantle Motšomotšo and (retired) Major Gen Lineo Poopa. He never suggested that they reported to accused 9. PW2 made it clear that the operation (to arrest “mutiny” suspects including Lt-Gen Mahao) started when accused 9 was still on leave of absence in South Africa.
“The second respondent (Abrahams) further suggested that on 25 June 2015 accused 9 (Kamoli) authorised an operation to arrest the deceased (Lt-Gen Mahao). He further suggested that instead of arresting the deceased, the applicants ambushed the vehicle driven by the deceased and shot the deceased with an automatic rifle. The first and second witnesses’ (Lance Corporal Halahala and Rtd Col Phaila) evidence contradicts these assumptions and comments. On the contrary PW2 (Phaila) made it clear that the operation to arrest the deceased and other suspects of mutiny was authorised by the then Acting Commander Major Gen Motšomotšo and Major Gen Poopa.
“Throughout his opening address, the second respondent (Abrahams) appeared to be stating facts instead of indicating what evidence he intended to call to show those alleged facts. He went ahead in concluding that should the court return a verdict of guilty on the charge of murder and the prosecution will seek the imposition of the death penalty. I have been advised that the timing of this statement was not only reckless, irresponsible and outright irregular by the second respondent, it clearly showed that he was prepared to influence the court and would do anything to secure our conviction.
“This approach leaves us with not doubt that the second and third respondents are conducting this trial with a view of ensuring that we are convicted at all costs. They are not conducting the trial dispassionately and impartially, but are clearly partisan and desirous that the applicants be convicted notwithstanding lack of evidence suggesting commission of a criminal offence,” Sgt Moepi argues.
Lt-Gen Kamoli and the other seven co-accused soldiers also deposed similar affidavits in support of Sgt Moepi’s claims.
They therefore want the court to order; “that the second and third respondents (Abrahams and Nku)) be removed as prosecutors in this matter.
“…it be declared that the first respondent (Motinyane) is not disqualified to appoint a prosecutor to continue with the trial in this matter. The attorney general be ordered and directed to appoint a prosecutor to continue with the prosecution of the applicants herein”.
Rtd Col Phaila began testifying last Monday. Despite being roped in by the state as a witness, he has attempted to exonerate Lieutenant General (Lt-Gen) Kamoli and his co-accused.
In his quest to exonerate Lieutenant General Kamoli and his co-accused, Rtd Col Phaila, went as far as claiming that the current Lesotho Defence Force (LDF) command is composed of people who mutinied against Lt-Gen Kamoli’s command.
This despite that a 2016 SADC Commission of Inquiry established that there was no such mutiny and instead recommended the prosecution of all those suspected of murdering Lt-Gen Mahao in Mokema, Maseru on 25 June 2015.