Tefo Tefo
Lesotho Defence Force (LDF) Commander Lieutenant-General Tlali Kamoli wants High Court judge Justice Molefi Makara off a case in which 22 soldiers seek to have him jailed for failing to release them from Maseru Maximum Security Prison.
The army chief is facing a fresh contempt lawsuit for keeping the soldiers in detention despite Justice Makara’s order issued on 16 October. The order directed Lt-Gen Kamoli to release the soldiers from prison and place them under open arrest. The soldiers were detained between May and June this year for allegedly plotting to topple the LDF command.
The contempt application, which was filed on 2 November, was supposed to be argued on Friday last week.
However, Lt-Gen Kamoli’s lawyers informed the judge that the army commander and his fellow respondents wanted him off the case.
Lt-Gen Kamoli argues Justice Makara is likely to be biased against him after the judge expressed anger, in chambers, over criticism leveled against him over a local radio station. The condemnation concerned the judgment Justice Makara made in the first contempt of court application made by the detained soldiers against Lt-Gen Kamoli.
Justice Makara on 16 October ruled the LDF chief was not in contempt of court for not releasing the soldiers after the judge on 5 October said their detention was unlawful. The judge noted Lt-Gen Kamoli might not have clearly understood the order hence his failure to release the soldiers.
However, the army commander is no longer comfortable to have Justice Makara presiding over the case because of the comments he made in chambers.
To support the application for recusal, the LDF’s lawyer, Attorney Qhalehang Letsika submitted an affidavit in which he reveals the judge’s comments.
“On or about 4 November 2015, I received a telephone call from the judge’s clerk, Mr (Eric) Ramalefane, in terms of which he informed me that his Lordship, Mr Justice Makara, would like to see us with the other side representing the applicants in this matter.
“I duly complied. On or about 5 November 2015, we convened in his chambers.
“In that meeting, counsel for the applicants Messrs (Christopher) Lephuthing and (Koili) Ndebele, were present.”
Attorney Letsika said it was in that meeting that Justice Makara made shocking claims that the army commander and his co-respondents, Defence Minister Tšeliso Mokhosi, Attorney General Tšokolo Makhethe, Court Martial President Major-General Mojalefa Letsoela, and Court Martial Prosecutor Roland Suhr, felt he was no longer fit to preside over the case.
Attorney Letsika noted in the affidavit: “Justice Makara told us that he was furious because someone, whose identity he did not disclose, had made certain remarks on Harvest FM radio station about the fact that he initially granted an order directing the release of the applicants but that he subsequently did not find the commander guilty of contempt of court.
“The exact words that were used by this individual relating to us by His Lordship, were so egregious that they amounted to scandalising the court.
“The learned judge had every reason to be agitated. However, it is the remarks which he made during the meeting that have made the respondents concerned that he is not likely to bring an impartial decision in the matter.”
“Alternatively, the respondents perceive that he is likely to seek to show that he can make an order finding the commander of the LDF guilty of contempt of court.
“It is because in our meeting, the learned judge made it plain that the speaker was wrong to have accused him of failing to discharge his judicial duties because he does not and would not fear to send the commander to jail if he had to.”
Attorney Letsika further alleges the army’s lawyers advised the judge to stop making such remarks but seek legal alternatives against the individual who criticised him over the radio.
The judge, Attorney Letsika added, was advised to consult the Attorney General and Director of Public Prosecutions (DPP) on the matter.
“The learned judge was reluctant to pursue this route because he kept on saying he would consult his own lawyers.
“He was told that his remarks may create the perception that if he finds the commander of the LDF guilty of contempt, it would be to show the public that he could do it or that if he does not find him guilty it would be because he was afraid to do so as had been suggested over the radio,” he stated.
Attorney Letsika further said there were other serious utterances made by Justice Makara during the meeting in question, which he would not disclose in his affidavit to avoid embarrassing the judge.
“I must confess that I do not want, for professional reasons, to divulge full details of the remarks of the learned judge to avoid embarrassing him.
“It is significant though, to indicate that the issue of the person making remarks about him on Harvest FM made him understandably very furious with the consequence that he made the presenter of the programme in question to appear before him.
“This is a clear indication that he took the comment by the person who spoke on radio, in very serious light.”
The lawyer also says the judge should recuse himself because he had dealt with the first contempt application against the army commander.
He further accused the judge of ordering the release of the soldiers yet he had initially not specifically said so in his ruling.
“When one would have thought that after finding the respondents not guilty of contempt, which was the main relief sought, the learned judge went a step further in that application to grant an order which had not been prayed for.
“He granted an order in terms of which he ordered the release of the applicants under open arrest.
“I wish to indicate that the applicants had not sought this kind of relief,” he stated.
However, the detained soldiers who want Lt-Gen Kamoli jailed for failing to release them, are opposing the application seeking Justice Makara’s recusal.
The soldiers’ lawyer, Attorney Tumisang Mosotho, on Tuesday filed an affidavit detailing why the judge should continue hearing the case.
Part of his affidavit reads: “Due to the nature of oath of office taken by judicial officers to administer justice without fear or favour, and their ability to carry out that oath by reason of their training and experience, it is presumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions.
“His Lordship Justice Makara is a judicial officer of many years, first as a renowned magistrate and now as a judge.
“The presumption is that he is a person of conscience and intellectual discipline capable of judging a particular matter fairly on the basis of its own circumstances.”
Attorney Mosotho further says justice would be frustrated if a litigant could simply ask for another judge if he or she is not happy about the way the case is proceeding.
He also says the application seeking the judge’s recusal is unfounded.
“As will be clearer in the following paragraphs, the respondents’ application that His Lordship Justice Makara recuses himself from this matter is not only tenuous but also frivolous.
“It will be particularly prayed at the hearing of this matter that the court, in order to protect its integrity, should frown at such an ill-founded and misdirected challenge to its composition,” he stated.
Attorney Mosotho also said there was another reason why the application should be dismissed.
“The attorney of record for the respondents states under oath that this application centres around remarks made by His Lordship Justice Makara on 5 November 2015.
“However, there is no explanation why he and the respondents only approached the court on the eleventh hour on 19 November 2015 when the matter was set down to proceed on the 20th of November 2015.
“The respondents ought to have raised their complaint of potential bias at the earliest possible stage after all the facts giving rise to the recusal complaint were known to them; in this case immediately after the 5th of November 2015.”
Attorney Mosotho further said the recusal application is a serious matter that affects the rights of other parties involved in the case.
“The soldiers’ application is about their fundamental right to liberty and such a matter cannot unreasonably by prolonged by meritless applications of this nature.
“In the circumstances, and in the absence of an explanation for the delay by the respondents, it is only reasonable to conclude that this recusal complaint is but a tactical device to delay the hearing of the main application herein,” Attorney Mosotho stated.
He also said the recusal application did not meet the requirements to be treated as urgent.
“The present application’s urgency has not been established both in form and substance and it will be argued that this application be dismissed for lack of urgency without even entertaining the merits.”
Meanwhile, the application for Justice Makara’s recusal will be heard on Monday next week.
Judges’ Clerk, Eric Makara yesterday told the Lesotho Times: “There was supposed to be an argument on the contempt application on Friday last week.
“But on Thursday, lawyers representing the army authorities intimated that they wanted to make an application for the learned judge to recuse himself from the case.
“The judge told them to file a formal application by Friday last week.
“They filed the application and the agreement was lawyers representing the soldiers should file their answering papers by Monday this week. However, the answering papers were not filed on Monday as expected.
“The explanation was that they were served with the application late on Friday and did not have time to consult their clients in prison and only managed to do so on Monday.
“That is why they only filed their answering papers on Tuesday and the applicants in the recusal application have to reply.
“Now, the case will be argued on Monday next week at 4pm.”
