Mohalenyane Phakela
THE trial of 10 soldiers accused of murdering three Maseru civilians in 2017 will begin on 23 March 2021 despite their pending Constitutional Court application for a permanent stay of proceedings.
Botswana Judge, Onkemetse Tshosa, who is presiding over the matter, on Tuesday set down 12 March 2021 as the pre-trial conference date. Justice Tshosa also said the actual trial will be held from 23 to 26 March and resume on 6 April 2021.
The 10 soldiers are Brigadier Rapele Mphaki, Major Pitso Ramoepane, Sergeant Lekhooa Moepi, Captain Mahlehle Moeletsi, Lance Corporal Mahlomola Makhoali, Private Nthatakane Motanyane, Motšoane Machai, Tieho Tikiso, Liphapang Sefako and Nemase Faso.
They allegedly strangled Lekhoele Noko, Molise Pakela and Khothatso Makibinyane at Setibing in rural Maseru on 16 May 2017 and dumped them in the Mohale Dam.
They allegedly kidnapped and murdered the three men after the trio had just been released from police custody where they were detained in connection with a shooting incident that occurred at the Maseru border gate on 13 May 2017.
They were initially supposed to stand trial on 7 December 2020 but the matter was postponed to allow the Constitutional Court bench of Justices Tšeliso Monapathi, Moroke Mokhesi and Keketso Moahloli to rule on their application for a permanent stay of proceedings.
The 10 are part of a group of serving and former members of the security agencies including former army commander, Lieutenant General Tlali Kamoli, who, in October 2020, petitioned the Constitutional Court to have their trials permanently stopped on the grounds that their trials had taken too long to begin in apparent violation of their rights to speedy trials.
They also want two foreign judges engaged by the government and judiciary to preside over their numerous murder and attempted murder trials to be declared unfit to preside over their cases. Justice Tshosa and his Zimbabwean counterpart, Justice Charles Hungwe are the two foreign judges who were recruited in 2019 with the help of SADC and the European Union to preside over the high-profile trials of politicians, serving and former members of the security agencies.
These include the murder and treason trial of Lt-Gen Kamoli and others. However, the trials have so far failed to take off due to numerous court litigations by the accused to permanently stop them.
Even when they have lost their applications in the High Court, they have either turned to the Constitutional Court or Court of Appeal thus causing numerous delays to the trials.
But Justice Tshosa has decided to proceed with the trials. He on Tuesday ruled that he will proceed with the trial of the 10 soldiers on the grounds that even though they have a pending Constitutional Court application, the same court has not issued any interim order to stop the trials from proceeding.
During their Tuesday court appearance for mention, the soldiers’ lawyers Attorney Qhalehang Letsika, Advocates Letuka Molati, Kabelo Letuka and Napo Mafaesa urged Justice Tshosa to postpone the trial due to the pending Constitutional Court application.
However, Crown Counsel Adv Shaun Abrahams objected on the grounds that there was no interim order staying the trial until after the Constitutional Court had delivered its verdict.
He asked the judge to set the trial dates, to which the latter obliged.
“The view of the court is that indeed there is no order staying these proceedings while the constitutional case proceeds,” Justice Tshosa said.
“The court has concluded that it will proceed with this trial. The pre-trial conference shall be held on 12 March 2021. The trial will run from 23 to 26 March and then on 6 April 2021.
“In the event that the constitutional application succeeds while this matter is still in progress, this court will deal with that issue there and then,” Justice Tshosa ruled.
Meanwhile, Justice Hungwe has postponed two other criminal trials involving Lt-Gen Kamoli to allow the Constitutional Court to finalise the soldiers’ application for a permanent stay of proceedings.
One of the cases is a murder trial in which Lt-Gen Kamoli and nine others are accused with nine other soldiers of murdering army commander, Lt-Gen Maaparankoe Mahao, on 25 June 2015.
Lt-Gen Kamoli’s co-accused are Captain Litekanyo Nyakane, Captain Haleo Makara, Sergeant Lekhooa Moepi, Sergeant Motsamai Fako, Corporal Marasi ‘Moleli, Corporal Motšoane Machai, Corporal Mohlalefi Seitlheko and Corporal Tšitso Ramoholi.
Former National Security Services (NSS) director and head of Military Intelligence, Tumo Lekhooa, was also roped in among the accused, but he has not attended any court session since he fled the country in 2017.
Furthermore, the accused attempted to kill Lt-Gen nephews, Mahao Mahao and Mabilikoe Leuta, by shooting inside a vehicle in which they were passengers.
They are also charged with damaging Lt-Gen Mahao’s vehicle during the same operation, a white Nissan half-truck, by firing at it with an automatic rifle.
Lt-Gen Kamoli is further charged with the theft of Lt-Gen Mahao’s 9mm pistol and Samsung Galaxy mobile phone.
Justice Hungwe also postponed Lt-Gen Kamoli and others’ attempted murder trial.
In this case, Lt-Gen Kamoli is accused alongside Major Ramoepane, Captain Nyakane, Sergeant Malefane Heqoa and Corporal Seitlheko.
They face attempted murder charges in connection with the 27 January 2014 simultaneous bombings of the Moshoeshoe II homes of former First Lady ‘Maesaiah Thabane and the Ha Abia residence of former police commissioner, Khothatso Tšooana.
Justice Hungwe postponed both matters to 22 March 2021.
“The matter is postponed to 22 March 2021 for an update of the constitutional case and the discovery of the Phumaphi record of proceedings,” Justice Hungwe ordered.
This was in reference to the defence’s demand for the prosecution to furnish them with the entire record of the 2015 Justice Mphaphi Phumaphi-led SADC commission of inquiry’s report on the Lt-Gen Mahao murder.
The murder charges stem from the findings of the Phumaphi commission which recommended that all those implicated in the killing of Lt-Gen Mahao must be tried in court. Although the report was made public, the defence have insisted on being furnished with the entire record of the Phumaphi Commission’s proceedings, including the evidence which was given in camera by witnesses who were called to testify.
The defence says it needs the entire record to prepare its defence.
However, the prosecution said they were still waiting for the South African Development Community (SADC) to give them the greenlight to furnish the defence with the complete record of proceedings which gave rise to the murder and attempted murder charges.
