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Lawyers query insurgency report

by Lesotho Times
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MASERU — The Law Society of Lesotho wants certain sections of Justice Jan Steyn’s report into the attack on the prime minister’s residence deleted.

The society says the report looking at the State House and Makoanyane Military Base attacks undermines the independence of the judiciary.

The society has since written to the Attorney-General, Ts’okolo Makhethe, calling on him to delete sections of the report that they say seek to pass judgment on High Court rulings.

The commission was appointed by Prime Minister Pakalitha Mosisili to investigate the attacks on State House and Makoanyane barracks by a group of about 15 mercenaries on April 22 last year.

The report, completed on April 16 this year, alleges that the mercenaries could have received inside help during the attacks.

The law society however says some sections of the report show that the Steyn Commission could have crossed its mandate when it dealt with High Court judgments.

The report criticises the manner in which people who were suspected to have participated in the June 2007 attacks on ministers’ houses were granted bail by Justice ’Maseforo Mahase.

The commission said it was particularly concerned that the late Makotoko “Mashai” Lerotholi, the man accused of leading the April 22 attacks, was one of the five men who were granted bail by Justice Mahase in 2007.

It says procedure was not followed when Justice Mahase granted the suspects bail.

The circumstance under which Justice Mahase granted the suspects bail “can only be described as most unusual”, the report says.

“There was clear and credible evidence before us by the members of the security triumvirate, that the ready release on bail of persons charged with the offences set out above, frustrates their efforts to bring such accused persons to justice,” the report says.

Justice Mahase released Lerotholi after Chief Magistrate Molefi Makara had referred the case to the High Court to determine whether he had jurisdiction to “entertain the lawfulness” of the suspects’ detention.

Through an interim order he had ordered that they should be kept in protective custody.

The High Court said it could not hear the matter because the appeal raised a constitutional issue and ordered that the record of proceedings be typed and sent back for the attention of the Constitutional Court. 

“Without due process being observed Mahase J then intervened and granted an order releasing Lerotholi and his co-detainees from the custody of the police.

“There was no proper application before her to do so, and no affidavits or oral evidence were placed before her. No real opportunity was given for the police or the military to depose as to why they had been arrested or why their detention was justified.”

The commission’s report says Justice Mahase’s concern for the rights of Lerotholi and four others was extensively addressed and recorded but she never bothered to hear the other side.

“As a result, Lerotholi was released and fled across the South African border,” the report says.

“On the evidence before us he joined forces with Jesse Ramakatane, planned and executed the insurgency described in this report.” 

Ramakatane is the man suspected of bankrolling the April 22 attacks.

He is currently in South Africa fighting Lesotho’s efforts to extradite him.

The law society says the commission should not have dealt “with the issues which courts of law have already pronounced on”.

“The Steyn Commission selectively subjected the ruling of Mahase J to non curial review; notwithstanding that no appeal was noted by the crown against the said ruling — despite it being duly represented throughout the said proceedings,” says law society president Zwelakhe Mda in a letter to the attorney-general.

“We have noted with dismay the misrepresentation of fact that ‘she never considered that hearing the other side was necessary’”.

Mda also argues that the commission’s criticism of Justice Mahase’s decision to release the suspects was unfair because it disregarded an earlier judgment by Chief Justice Mahapela Lehohla.

Justice Lehohla had earlier ruled that Chief Magistrate Makara “was entitled to release the suspects on the score of unlawfulness that had tainted their further detention”.

The Steyn Commission’s mandate was not to review the judicial processes, Mda says in his five page letter to the attorney general.

“Any extension of the mandate into the judicial sphere would be subversive of the constitutional doctrine of separation of powers and the rule of law.

“The Commission seems to have crossed these constitutional boundaries under the pretext that it can investigate ‘any other issue relevant,’” he says.

Mda says it is wrong that the commission’s recommendations “whittle down the powers of the courts to entertain bail applications in security-related cases”.

“This is unprecedented in constitutional democracies.”

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