Mohalenyane Phakela
TWO more foreign judges have arrived in Lesotho to preside over the politically sensitive criminal cases involving politicians, serving and former members of the security agencies including the trials of double murder-accused former army commander Lieutenant General Tlali Kamoli.
Botswana judges, Justices Onkemetse Bashi Tshosa and Kabelo Kenneth Lebotse, were sworn in on Monday in Maseru by the Acting Chief Justice, ‘Maseforo Mahase, as government moved to ensure that the much-delayed high-profile criminal trials get underway.
This brought to three the number of foreign judges that have been recruited to try the high-profile cases.
Zimbabwean judge Justice Charles Hungwe was the first to be sworn in January before the recruitment exercise was suspended in February in the wake of a Constitutional Court challenge by Lt-Gen Kamoli, former Defence and National Security minister, Tšeliso Mokhosi, and 14 others, against the recruitment of foreign judges.
Lt-Gen Kamoli and his co-applicants argued that the recruitment of foreign judges was unconstitutional allegedly because it “usurped” the role of the Judicial Service Commission (JSC). But the Court of Appeal’s dismissal of Lt-Gen Kamoli’s case last week cleared the way for the resumption of the recruitment of the foreign judges. The dismissal of the appeal also cleared the way for the pre-trial conferences of the politically sensitive cases to begin this week. The first of these pre-trial conferences on Monday was that of Lt-Gen Kamoli and nine others who are charged with murdering former army commander, Lt-Gen Maaparankoe Mahao on 25 June 2015.
Speaking in the aftermath of Justices Tshosa and Lebotse’s arrival and swearing-in ceremony, the Acting Registrar of the High Court, Pontšo Phafoli, said the two judges were sourced by the judiciary from Southern African Development Community (SADC) member-states to preside over the high-profile criminal trials.
“We took this step (of recruiting foreign judges) to ensure that the (high profile) cases are heard to finality. After noting the huge backlog of cases before the courts, we asked for support in the form of additional judges from our development partners and we were able to get the three (Justices Hungwe, Tshosa and Lebotse),” Ms Phafoli said.
“The expectation is that the criminal trials will run for 18 months but if the cases are not finalised by then, the (foreign) judges’ contracts will be extended to enable them to hear the cases to finality.
“There are nine high profile cases in all but they (foreign judges) will also hear other criminal cases besides these high-profile ones.”
Justice Tshosa attained his doctorate in law (PhD) at the University of Edinburgh (Scotland) in 1999. He also holds a Masters of Laws (LLM) from the University of Lund (Sweden- obtained in 1992) as well as a Bachelor of Laws from the University of Botswana (obtained in 1990). In addition to his vast experience as a magistrate and a high court judge in his home country, Justice Tshosa was also a judge of the SADC Tribunal in Namibia from 2005 to 2010. He is currently a law lecturer at the University of Botswana.
Justice Lebotse has a Master of Laws from the University of London (obtained in 1996). He also holds Bachelor of Laws (LLB) from the University of Botswana (obtained in 1994) and a Certificate in Human Rights from the Raoul Wallenberg Institute of Human Rights and Humanitarian Law in Sweden (1999). He has previously worked as an acting judge at the High Court of Botswana until 2017. He also worked as a senior lecturer at the University of Botswana.
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 for the cases,” Mr Moletsane said.
