Major logjam for high profile trials

  • govt, SADC and EU have their work cut out as Kamoli & co-accused’s lawyers withdraw services,
  • demand foreign judges’ withdrawal until clients’ demands are addressed

Pascalinah Kabi

BARELY three weeks after assuming the top job, newly-appointed Chief Justice Sakoane Sakoane faces the enormous task of ensuring the successful completion of the high-profile trials involving former army commander, Lieutenant General Tlali Kamoli, and other serving and former members of the security agencies.

This after lawyers representing Rtd Lt-Gen Kamoli and his co-accused soldiers withdrew their services and also slapped Justice Sakoane with a letter demanding that he addresses the alleged inhuman treatment of their detained clients by prison authorities.

The lawyers are Attorney Qhalehang Letsika and Advocates Zwelakhe Mda, Karabo Mohau, Letuka Molati, Kao Theoha, Silas Ratau, Mkhantji Kao, Letuka, Napo Mafaesa and Lintle Tuke.

The lawyers accuse SADC leaders of complicity in the alleged denial of their clients’ rights to a fair trial. They warn that through their complicity SADC leaders are actually sowing seeds of future instability in Lesotho instead of addressing the problem.

They also accuse the prosecution of a shoddy job in preparing for their clients’ trials, saying dockets and other documents necessary to the charges ranging from murder, treason and attempted murder are only being prepared now more than three years after their clients were arrested and detained.

The lawyers reserve some of their venom for SADC and the European Union (EU) who they accuse of financing and abetting the “charade characterised as trials of our clients”.

They call upon SADC states who have provided judges for the high-profile trials to withdraw them.

Their demands are contained in the letter of demand to Justice Sakoane dated 18 November 2020.

The letter is also addressed to local judges and the Attorney General, Advocate Haae Phoofolo. It is copied to Prime Minister Moeketsi Majoro, Speaker of Parliament Sephiri Motanyane, Law and Justice Minister Professor Nqosa Mahao, the leader of opposition, Monyane Moleleki, the Director of Public Prosecutions (DPP), Advocate Hlalefang Motinyane and foreign missions in Lesotho.

Others who have also been copied are the Law Society of Lesotho, International Bar Association, Amnesty International, Southern African Development Community Lawyers Association, Commonwealth Lawyers Association and the media.

Lt-Gen Kamoli and some of his co-accused have been in remand prison since their arrest in October 2017 in connection with various crimes.

These include treason against the first government of former Prime Minister Thomas Thabane. In this case, Lt-Gen Kamoli and others are charged alongside former Deputy Prime Minister Mothetjoa Metsing and current Development Planning Minister Selibe Mochoboroane.

Lt-Gen Kamoli and others are also charged with the June 2015 murder of army commander, Lt-Gen Maaparankoe Mahao. Back in 2018, the government approached SADC members states and secured foreign judges to try these and other high-profile trials.

At the time, then Justice and Correctional Services Minister Mokhele Moletsane said while the local judges were competent enough to try the cases, the government and 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.

With the help of SADC, the government eventually secured the services of Zimbabwean judge, Charles Hungwe and Botswana Judges Onkemetse Tshosa and Kabelo Lebotse. The judges’ allowances are paid from a fund sourced from the EU.

Justice Lebotse resigned earlier this year, citing poor working conditions. His resignation left Justices Hungwe and Tshosa with the huge task of presiding over the high-profile trials by themselves.

The trials have failed to take off due to numerous lawsuits filed by Lt-Gen Kamoli and his co-accused. In one instance, they unsuccessfully sought the recusal of Justice Hungwe, alleging that they were unlikely to get a fair trial as he had already prejudged them by labelling them “killers of Lt-Gen Mahao”.

This particular case was thrown but this has not stopped them from filing other constitutional applications to stop the state from trying them.

Now the trials face another hurdle this time from Lt-Gen Kamoli and his co-accused’s lawyers who have not only withdrawn their services but also petitioned Justice Sakoane, government, SADC and the foreign judges to stop what they call the charade of trials meant to produce a determined outcome against their clients.

In their 18 November letter, the lawyers repeat allegations previously made by Lt-Gen Kamoli and others of inhuman treatment and poor conditions at the Maseru Central Correctional Institution (MCCI).

They want Justice Sakoane to urgently address their concerns about the alleged denial of their clients’ rights to adequate food, adequate time to consult their lawyers and time and documents to enable them to adequately prepare for their trials.

They argue that in some of the cases the state has either refused or ignored their requests to supply their clients with specific documents they need to prepare their defence. They also accuse the presiding judges of failing to address their concerns.

They now want Justice Sakoane to ensure that all their concerns are addressed. In the meantime, the lawyers say that they are withdrawing their services to their clients and they will not be part of “this grotesque travesty of justice”.

They said they had been forced into the drastic decision to “expose the state of the incarceration of the so-called high profile accused”.

“Our clients have for a long time been subjected to sub-human conditions of incarceration and denial of the following basic rights: adequate food and or food fit for human consumption; adequate time to consult with their lawyers and prepare adequately for their capital offence charges,” the lawyers state in their letter.

“In some cases, the crown has refused or ignored requests to supply the accused with specified documents essential for the defence cases. We are sadly constrained to observe that the presiding judges incline to dealing with the accused’s concerns in the most nonchalant and cavalier manner unprecedented in this jurisdiction.”

The lawyers say they want to place it on record for future generations to know that although Lesotho is a signatory to several international instruments on the protection of various rights including those of detained persons, it has singled out their clients for persecution.

“We want to straighten the record as to the circumstances under which our clients are held and tried. Contrary to uninformed, speculative and/or deliberately misleading statements regarding the conditions under which they are held; we appeal to the countries that have contributed personnel to participate in the charade characterised as trials of our clients to immediately withdraw their citizens who are giving a helping hand to the denial of our clients’ fundamental rights.”

Although the trials are part of efforts to address human rights violations which were allegedly perpetrated by Lt-Gen Kamoli and his co-accused, the lawyers warn that the alleged unfairness of the judicial processes is a potential source of future instability in the country.

“We also want to put in on record that these charades of trials will not only go down in the history of Lesotho as the worst denial of justice aided and abetted by member states of SADC and financed by the European Community, they are certainly also an incubation for further instability and absence of peace in Lesotho going forward.

“Unless the sources of our complaints are addressed, we will not take part and thereby give a semblance of propriety to proceedings that are otherwise completely lacking in any semblance of impartiality or intention to do justice in a manner that ensures that our clients’ rights are respected. As matters stand, it is clear that we are just going through motions towards a predetermined fate for our clients. We refuse to be made party to such a gross miscarriage of justice.”

Although Lt-Gen Kamoli and his co-accused have delayed their trials by filing numerous court applications, the lawyers shift the blame to the state, saying their clients have been languishing in jail for more than three years without being tried for reasons that can only be blamed on the prosecution.

“The prosecution has, as late as June 2020, been frantically interviewing persons it seeks to make witnesses in these cases. It has been giving witnesses piecemeal statements while pretending that it has all along been ready to proceed with these trials. How could it be ready when it is only now doing what should have been done three years ago? How could the cases be ready to proceed when the discovery of police dockets is only taking place now in 2020?  In some instances, our clients have had to go to court to seek discovery of police dockets in vain. In some instances, things that could have been discovered three years ago are only being discovered in September 2020.

“We are denied adequate facilities to confer with our clients as we are made to wait for very long periods when we go to consult our clients in jail. We often have limited time to consult. We have complained to the presiding judges about this but all in vain. When we utilise the opportunity of the presence of our clients in court and consult, there is interference from correctional officers who insist on eavesdropping on our communications with our clients.

“Our clients, especially those held at the maximum-security wing of the Maseru Central Correctional Institution, are held in inhuman conditions. Clients are crammed in cells that are overcrowded and they have to share mattresses. They are deliberately being malnourished by being fed meagre portions of porridge as breakfast and meagre pap and beans for the last meal of the day. Whenever we meet in court, they complain to us that they are hungry as they did not have enough food before coming to court. Their families are only allowed to send them food once a week. It does not make sense that under the present hot weather conditions, clients should only be allowed food from home once a week. Such food cannot remain fresh for seven days.

“We are speaking here of people who have not been convicted of any offence, some who are living with chronic ailments that require treatment through proper nourishment.

“Strangely when clients complain to presiding judges through their lawyers that they are forced to attend court on empty stomachs, they (judges) avoid dealing with the matter judicially and opt for exhorting lawyers and the accused to take up the matter with the very same administrative authorities that are responsible for denying our clients access to proper and sufficient food.”

The lawyers also complain that despite voluntarily surrendering to the police, their clients have been repeatedly denied bail even when it is clear that their trials are a long way from commencing.

What is even more galling for them is that some people also accused of serious crimes have been granted bail even when they have previously fled the country to evade arrest.

This is in reference to former First Lady ‘Maesaiah Thabane who stands accused of the 14 June 2017 murder of her husband, Mr Thabane’s ex-wife, Lipolelo Thabane.

‘Maesaiah was granted bail in February and June 2020 despite that she had fled the country in January this year after a warrant for her arrest was issued by the Maseru Magistrates’ Court.

“For about one and half years, from the date of arrest of our clients, local judges did not entertain our clients’ cases saying those cases had not been allocated to them and that arrangements were being made for foreign judges to preside over the said cases. It is sad that today when we ask for things that our clients are entitled to, we are now being labelled by the less informed as engaging in delaying tactics.

“The constitution of Lesotho provides that any person charged with a criminal offence shall be afforded a fair hearing. This constitutional imperative does not only relate to fundamental justice and fairness in the procedure and the proceedings at the accused’s trial. It also includes the right to be treated fairly and lawfully by state organs prior to the trial. Fair pre-trial procedure is a determinant of trial fairness.”

The lawyers also take aim at the lead Crown Counsel, Shaun Abrahams, who they accuse of jumping the gun and unprocedurally announcing his intention to demand the death penalty in the event that Lt-Gen and others are found guilty of any of the crimes they are accused of.

“The telling question in respect of accused criminal trials is: how can they have fair trials when pre-trial unfairness has been visited upon them in the manner exemplified above. The simply answer to the question is that there cannot be justice for the accused in these predetermined charade trials.

“As long as these issues are not honestly and effectively addressed, the avowed wishes of the lead South African Crown Counsel, Shaun Abrahams, will be fulfilled.

“He unprecedentedly declared that the crown would ask for the death sentences for all the accused if they are convicted.

“This unsavoury background has presented us with two options- either we continue to afford these charade trials the semblance of legitimacy and thus be complicit in a process designed to deny our clients justice. Or we step aside and not be part of this grotesque travesty of justice.

“For the avoidance of doubt, we are not turning our backs on our clients. We are merely doing the right thing of not being complicit in this historic and mammoth injustice by giving it a semblance of due process through our participation. But we are willing and ready to continue representing our clients if the inhuman and cruel treatment meted out to them and the aforementioned constitutional imperatives are addressed.

“We want to appeal to our colleagues in the profession who will be enticed into stepping in – not to be tempted to give any credence to this discredited process and be complicit in denying our clients justice.

“We also want to express our shock at the deafening silence of SADC under whose watch and with whose complicity our clients are suffering the denial of their rights. SADC leaders should do some serious soul searching and ask themselves whether charade trials in Lesotho are a foundation for peace or they are sowing seeds of instability going forward,” the lawyers state.

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