Shoddy Nthane trial and acquittal exposes flawed judiciary: analysts
PROMINENT businessman Tšeliso Nthane’s trial and acquittal on murder charges is a story that has got tongues wagging since it happened over two weeks ago.
There have always been questions about the competence and effectiveness of Lesotho’s criminal justice system. These have now been amplified by Mr Nthane’s acquittal.
Never before had anyone been tried for murder and acquitted in under 72 hours. But all that has changed and Mr Nthane will most likely enter the country’s record books as the only suspect to be tried and speedily discharged in just three days.
He had been charged with murdering his truck driver, Kopang Mohapi, on 10 January 2019, in what was suspected to be a fit-of-rage incident.
After lengthy delays which cast aspersions on the effectiveness of the criminal justice system, Mr Nthane was eventually brought to trial before acting judge, Palesa Rantara, on 6 April 2022. As pointed by a lawyer who refused to be identified for professional reasons, the allocation of such a high-profile case to Justice Rantara barely two months after her February appointment, albeit in an acting capacity, when there were seasoned substantive judges, “was also a curious affair in itself”.
In the end, her appointment was less talked about than her decision to acquit Mr Nthane after a trial which lasted just three days from 6 to 8 April 2022.
The judge ruled the prosecution had failed to put a solid case before her and acquitted Mr Nthane without even putting him to his defence.
So shoddy was the police and prosecution’s work that the only two witnesses called by prosecutor Advocate Motene Rafoneke actually helped Mr Nthane’s case than the state’s own against him.
Adv Rafoneke elected not to call a third witness he had lined up saying he would be “of no use to the case”.
No forensic reports were submitted. Not even the investigating officer was present to submit evidence. Adv Motiea Teele, for Mr Nthane did not have to break any sweat to tear the state’s case and achieve the acquittal.
Legal experts, who interviewed by this publication, agree that the shoddy Nthane trial and acquittal exposed a deeply flawed criminal justice system fronted by an inept police force and prosecutors.
“It (criminal justice system) is one that cannot be counted upon to ensure justice for victims of horrendous crimes; it cannot be trusted to punish perpetrators, deter would-be criminals and inspire national and international confidence that the rule of law prevails in Lesotho,” said one lawyer.
“The flaws in our justice system are deeply entrenched. The Nthane trial and acquittal has just exposed or highlighted what we have always known but failed to address. Everyone is talking about the trial. Even the chief justice (Sakoane Sakoane) has alluded to it,” the lawyer added.
This was in reference to Justice Sakoane’s remarks while addressing a judicial workshop last week in Teyateyaneng, Berea
Addressing stakeholders, who included international development partners, the top judge exonerated judges and instead blamed “inefficient and unprofessional” police officers and prosecutors for the acquittals of criminal suspects even if they are not innocent of the charges against them.
He said the police and prosecutors were vital cogs in the justice delivery system and the police were duty-bound to thoroughly investigate cases before presenting them to the prosecution.
In turn, the prosecution had to present water-tight cases to the courts to secure convictions, failing which judges were compelled to acquit suspects even if they were not necessarily innocent of the charges against them.
“We know that members of the public don’t distinguish between the prosecution and the court sometimes. They believe that once a person is charged and brought to court, the responsibility of ensuring that person is found guilty lies with us judges, but that is contrary to the truth.
“Without an efficient and professional police service, there is no judicial system worth mentioning. It is very important to understand the context in which we operate. We have the police as the first point of entry into the judiciary and then the prosecution. And if the police and prosecutors don’t do their jobs very well, we are duty bound to acquit people.
“We only follow facts and evidence. So, if the quality of evidence is poor, the law says that we should acquit suspects. This is not a matter of choice, we have to do that. It is therefore very important that we have efficient investigators, efficient prosecutors and knowledgeable judicial officers. We need judicial officers who are efficient, not lazy; who don’t come to work late; who can read the law and update their knowledge,” Justice Sakoane said.
However, the lawyer who spoke to this publication this week, said Justice Sakoane was wrong to absolve magistrates and judges.
“Magistrates and judges are not as blameless as Justice Sakoane would have us believe. In this particular (Nthane) case, the judge could have put Nthane to his defence because there is no disputing that a shot was fired from the suspect’s gun and it killed the deceased. There is no law which prevents judges from ordering the prosecution to bring in ballistic experts and other witnesses in order to help arrive at what could have possibly happened more so when it is common cause that the suspect and the now deceased victim had engaged in a fierce verbal altercation which could have given the suspect a motive to kill the victim,” the lawyer said.
However, former Justice minister Kelebone Maope concurred with Justice Sakoane, saying the shoddy job by the police and prosecution had left Justice Rantara with no choice but acquit Mr Nthane.
Advocate Maope KC, who also served as attorney general from 1986 to 1993, said corruption among police and prosecutors could not be ruled out as the reason behind the weak state case which led to Mr Nthane’s acquittal.
“The blame is on the police and prosecution for presenting such a messy case to the court. I was once a prosecutor and I know that a prosecutor can be an experienced person who wants justice to be served or it can be an inexperienced person who can mess up the case.
“Again, there are corrupt prosecutors who can do everything to enable criminals to walk free. From experience, some police officers will submit a weak case and we (prosecutors) must tell them to go back and find more evidence if we feel that something is lacking. Clean police officers will go back and do further investigations but the corrupt ones will make the docket disappear and thus destroy the case.
“There is so much corruption among prosecutors lately and one cannot really tell what happened. But I am putting most of the blame on the police because they are the one who investigate cases,” Adv Maope said.
He said due to the moribund justice system which enabled criminals to go free, Lesotho should brace itself for the continuation of the rampant killings that have plagued the country over the years.
“Criminals can be deterred from committing crimes if they know that they will be arrested and sent to prison. But if they continue walking free then the crime rate will continue to grow. We are in real danger,” Adv Maope said.
His sentiments were echoed by another lawyer, Adv Letlatsa Letompa, who also slammed the police and prosecution for their ineptitude in the Nthane case.
“Police have a duty to investigate and give the prosecution the docket. When a case is taken to court, the presumption is that all the evidence is there for the case to be prosecuted. But if there isn’t enough evidence then the judge has no choice but to acquit the suspect.
“It’s just unfortunate that if a case is before court without sufficient evidence the public will lose faith in the courts for acquitting the accused. The police have a primary role to combat crime through effective investigations. But if the investigations are flawed, everything else that follows will be flawed until the suspect is acquitted.
“The acquittal of suspects due to flawed prosecutions means that the public will not only lose confidence in the courts, they will not be deterred from committing crimes because they know that they will be acquitted by the courts. Therefore, the poor investigations and consequently poor prosecutions contribute to the high crime rates in the country,” Adv Letompa said.
The results of the incompetent criminal justice system are there for all to see.
Rampant killings of men, women and children continue unabated. Even members of the security agencies, particularly the police, have not been spared by the bloodthirsty killers.
The killings have made Lesotho a place where even angels fear to tread. The country has become the foremost homicidal nation on the African continent and sixth in the world according to the 2021 rankings published by the respected World Population Review.
El Salvador is the murder capital of the world. Apart from El Salvador, only Honduras (2nd ranked), Venezuela (3rd), the Virgin Islands (4th) and Jamaica (5th) are ranked higher than Lesotho.