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Phaila challenges Court Martial trial

by Lesotho Times

By Nat Molomo

MASERU — Second Lieutenant Thabang Phaila, currently on trial by court-martial on mutiny and desertion charges, wants the proceedings nullified at the High Court.

On behalf of the accused, Advocate Sakoane Sakoane KC told the acting judge, Justice Molefi Makara, on Tuesday that the application seeks a review and an order declaring and nullifying the convening of the Court Martial by the Minister of Defence.

The Minister of Defence, Prosecutor – Court Martial and the Attorney-General are the respondents in the case.

Sakoane contended that the High Court, according to the Constitution, has jurisdiction in terms of the section 119 subsection 1 (2) read with subsection 2 (1) of the High Court Rules Amendment Act 1984.

He further submitted that in terms of that section, the High Court has jurisdiction to review the decisions and proceedings of any courts, including Court Martial.

Sakoane quoted the High Court Rules Amendment Act of 1984 as providing that “The High Court of Lesotho shall continue to exist and shall as hereto a court of record, and shall have unlimited jurisdiction to hear and determine any criminal and civil proceedings under any law in force in Lesotho.”

“Our submission is that section 119 of the Constitution and the High Court Rules unambiguously confer original jurisdiction to this court to grant the relief that we sought in our notice of motion,” Sakoane said.

He wants the High Court to declare that his prosecution at the Court Martial is “unfair, discriminatory and abuse of process”.

Phaila is asking the court to interdict the Minister of Defence from prosecuting him on the charges on which he stands arraigned before the Court Martial, as well as any other charges which might emanate from the same facts.

Phaila, who left Lesotho for South Africa at the height of the 1998 disturbances, returned to Lesotho last year and has since been slapped with charges for allegedly contravening sections 48 (2) and 49 (a) and 54 (a) of the Lesotho Defence Force (LDF) Act No. 4 of 1996.

In his court papers filed by his lawyer, Advocate Sakoane Sakoane KC, Phaila seeks an order declaring and nullifying an order convening the Court Martial by the Minister of Defence.

Phaila, who returned to Lesotho last September and was arrested in October, seeks to benefit from the amnesty policy in which all Basotho who left the country due to the political unrest before the May 2012 general elections could return home on the assurance that they would not be arrested.

When the court adjourned, Phaila’s lawyer was to provide the court with more heads of argument.

Meanwhile, Phaila’s Court Martial trial continued yesterday at Makoanyane Barracks.

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