Mohalenyane Phakela / Nat Molomo
THE pre-trial conferences of politicians and members of the different security agencies have been put on hold pending the outcome of the constitutional application challenging the legality of the appointment of the foreign judges.
The constitutional application was made by the murder-accused former Defence minister Tšeliso Mokhosi, former army commander Tlali Kamoli and 14 other members of the different security agencies.
On Tuesday, the pre-conference trial of Lieutenant-General Kamoli did not proceed and yesterday Justice Teboho Moiloa postponed his attempted murder case to 27 March 2019 due to the pending constitutional case challenging the legality of the appointment of the foreign judges.
“I understand that that lawyers on both sides have agreed that this matter be postponed to 27 March 2019 because there is a pending constitutional case concerning foreign judges in which you are the applicants. So, we must await the outcome of that case,” Justice Moiloa told the accused.
Lt-Gen Kamoli is facing 14 counts of attempted murder in connection with the 27 January 2014 simultaneous bombings of the Moshoeshoe II homes of First Lady Maesaiah Thabane and the Ha Abia residence of former police commissioner, Khothatso Tšooana.
He is charged alongside Major Ramoepane, Captain Litekanyo Nyakane, Sergeant Heqoa Malefane and Corporal Mohlalefi Seitlheko.
Major Ramoepane faces a separate murder charge in connection with the 5 September 2017 assassination of army commander Lt-Gen Khoantle Motšomotšo.
The case was postponed to 22 March 2019 and this was after the crown counsel, Advocate Naki Nku, told the court that the matter could not proceed because Major Ramoepane was one of the applicants challenging the recruitment of foreign judges to preside over their cases.
“We were supposed to convene a pre-trial conference today but we have been made aware that there is a constitutional case in which the accused (Major Ramoepane) is also an applicant,” Adv Nku told the court.
“The constitutional case challenges the appointment of foreign judges, including the one who will preside over this particular case. We were ready to proceed but we have been stalled by this (constitutional) case and we are still awaiting the verdict therefore we pray that this matter (pre-trial conference of Major Ramoepane) be postponed to 22 March for mention.”
Of the five foreign judges to try cases involving politicians and members of the security agencies, only Zimbabwe’s Justice Charles Hungwe, has so far showed up but even he has since left the country.
Justice Hungwe was sworn-in at the High Court on 15 January 2019 and on that same day, he got down to work, setting dates for the various criminal cases which will begin when the other foreign judges jet into the country at a yet to be announced date.
But even he (Justice Hungwe) has since left the country and his non-availability led to the postponement of last Friday’s case of 10 soldiers who stand accused of murdering the three in Maseru in 2017.
The 10 soldiers are Brigadier Rapele Mphaki, Sergeant Lekhooa Moepi, Captain Mahlehle Moeletsi, Lance Corporal Mahlomola Makhoali, Private Nthatakane Motanyane, Motšoane Machai, Tieho Tikiso, Pitso Ramoepana, Liphapang Sefako and Nemase Faso.
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.
However, on Friday, the pre-trial conference did not proceed due to the non-availability of Justice Hungwe.
And ahead of the arrival of the foreign judges and the commencement of the trials, Mr Mokhosi, Lt- Gen Kamoli, Major Ramoepane and 13 others filed their court application on 15 February 2019.
The other 13 applicants are Thabo Tšukulu, Mothibeli Mofolo, Mabitle Matona, Rapele Mphaki, Pitso Ramoepana, Lekhooa Moepi, Mahlele Moeletsi, Mahlomola Makhoali, Nthatakane Motanyane, Motšoane Machai, Liphapang Sefako, Nemase Faso, Tieho Tikiso and Litekanyo Nyakane.
They want the appointment of the foreign judges by the Judicial Service Commission (JSC) to be nullified on the grounds that it is unconstitutional.
In terms of the interim relief, they want Justice Hungwe and the other foreign judges to be interdicted and prevented from commencing criminal proceedings until the finalisation of their main court application.
“The first respondent (Justice Hungwe) and/or any foreign judge who has been appointed to preside over criminal proceedings… (should) be interdicted and prevented from convening and commencing criminal proceedings pending finalisation of these proceedings,” part of the application states.
“These criminal trials are stayed (deferred) until finalisation of the final relief (nullification of foreign judges’ appointments).
“It is declared that the appointment of the first respondent or any foreign judges specifically to preside over criminal proceedings was made in violation of the national constitution and is therefore null and void and of no force and effect.
“The recommendation by the Judicial Service Commission to appoint foreign judges to His Majesty the King (Letsie III) and the subsequent appointment of the first respondent (Justice Hungwe) or any foreign judge, pursuant to the initiatives of the executive, violates the provisions of section 132 (8) of the constitution which provides that in the exercise of its functions under the constitution, the Judicial Service Commission shall not be subject to the direction or control of any other person or authority.”
The applicants further state that the appointment of foreign judges violates “provisions of section 12 (1) of the Constitution which guarantees the right to fair trial, section 118 (3) of the constitution which guarantees the independence of the judiciary and are therefore null and void and of no force and effect”.
The Minister of Justice and Correctional Services, Mokhele Moletsane, is on record saying that the decision to engage foreign judges was taken to protect local judges from possible victimisation and backlash from trying the “politically sensitive cases”.
Mr Moletsane said while the local judges were competent enough to try the cases, the government and the Southern African Development Community (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.
“It has never been about the incompetency of local judges as the government believes they are capable enough to preside over the cases.
“However, the government and SADC agreed that due to the nature of the cases which are said to be politically sensitive, it would be best to source foreign judges because local judges are at risk of being victimised for the verdicts they would give in the cases,” Mr Moletsane said.
These arguments have however, been disputed by Mr Mokhosi, Lt-Gen Kamoli, Major Ramoepane and 13 others who argue that the appointments of foreign judges to preside over their cases are unconstitutional because it was the government and not the Judicial Service Commission that made the appointments. They further argue the government cherry-picked those foreign judges who they believe will return guilty verdicts as the government is eager to ensure that they are imprisoned at all costs.
