Mohalenyane Phakela | Pascalinah Kabi
THREE of the four treason and murder-accused soldiers have filed High Court applications for their discharge on the grounds that they have not been tried within a reasonable time.
The three are Lance Corporals Leutsoa Motsieloa and Motloheloa Ntsane as well as Captain Litekanyo Nyakane.
The three accused of treason against the first government of former Prime Minister Thomas Thabane on 30 August 2014. They are also accused of the murder of police Sub-Inspector Mokheseng Ramahloko which occurred during the same attempted coup against Mr Thabane’s government.
They accused alongside former army commander, Tlali Kamoli, and politicians, Mothetjoa Metsing and Selibe Mochoboroane. Messrs Metsing and Mochoboroane have filed their own application for a stay of the trial until after the implementation of the multi-sector reforms which were recommended by SADC in 2016.
It is not clear why Kamoli has not filed an application for his discharge. Although his three co-accused soldiers have applied for discharge, this publication only managed to obtain a copy of Lance Corporal Motsieloa’s application.
He wants to be released on grounds that he has not been tried in reasonable time in terms of section 141 of the Criminal Procedure and Evidence Act.
“The applicant be discharged in terms of section 141 of the Criminal Procedure and Evidence Act.
“Alternatively, the applicant (must) be released from detention in terms of section 4 of the Speedy Courts Trials Act or the separation of applicant’s trial from that of Mothetjoa Metsing and Selibe Mochoboroane,” Lance Corporal Motsieloa states in his court papers filed this week.
In his founding affidavit, Lance Corporal Motsieloa argues that he should have been tried way back because he was charged with murder in the Maseru Magistrates’ Court in 2017.
He argues that his trial has been deferred on numerous occasions in order for Messrs Metsing and Mochoboroane to be joined in as the co-accused. He states that he believes his trial will not proceed anytime soon hence the application for discharge.
“I am approaching a fourth year since I was indicted. My trial dates that were previously set were ignored and the trial got postponed in order to usher in Metsing and Mochoboroane. The desire of the prosecution and inclination of the judge to have Metsing and Mochoboroane joined to my trial was the sole reason that my trial could not proceed on the scheduled dates. I do not see the possibility of my trial commencing anytime soon under the current session of the court.
“I am advised by my attorney and I verily believe the same advice to be true that once I am committed to High Court, the trial shall be held at the first session following my committal. According to the same advice, if 31 days have elapsed between the date of commitment and the holding of the court session without the case being set for hearing, I am entitled to be released.
“I aver that my release on account of the failure to prosecute a case at the first session is statutorily compelled notwithstanding that I was denied a bail before. Alternatively, I aver that 60 days have since lapsed without my case being set for hearing. This has happened while I am in custody therefore I am entitled to be released under the dictates of section 4 of the Speedy Courts Trials Act.
“I aver that my continued detention without trial is prejudicial against myself and violates my constitutional right to a trial within a reasonable time which is statutorily defined under section 141 of the Criminal Procedure and Evidence Act and Speedy Courts Trials Act.”
Lance Corporal Motsieloa and his co-accused soldiers were initially charged with just the murder of Sub-Inspector Ramahloko. The prosecution subsequently amended the charge sheet in last January to include treason charges. The state also added Messrs Metsing and Mochoboroane to the list of the accused.
The suspects will be tried by Botswana Judge Onkemetse Tshosa who is one of two foreign judges alongside Zimbabwean Judge Charles Hungwe who were recruited by the judiciary and SADC to try high-profile cases involving politicians, serving and former members of the security agencies.
Lance Corporal Motsieloa argues that the new charges are prejudicial to him in that his detention will be extended and he also stands to suffer financially.
“I aver that my continued detention is also against my right to a fair trial and is prejudicial to me. The court ordered the indictment to be amended to include treason charges despite the fact that I have resisted the same and wanted to put evidence in opposition. I was not given a chance to oppose the crown application to amend the charges. I aver that there ought to be notices to everyone likely to be affected if the crown wants to renege from its previous position. I was ambushed by the crown and the court entertained that ambush to my prejudice.
“(The) inclusion of Metsing and Mochoboroane says I will have to endure more time in jail. This kind of attitude is against the international, regional and national standards of conducting serious trials such as the one we are faced with.
“It is worth mentioning that following my arrest, the executive and the Southern African Development Community decided to appoint judges to specifically preside over our cases. They (judges) are sponsored by the European Union and their financial incentives do not extend to me. I am financially prejudiced as I do not have money anymore to engage a counsel to raise my defence.
“I am advised that holding a joint trial of persons separately indicted is either a purported exercise of a non-existent jurisdiction or constitutes an irregularity that it results in a failure of justice vitiating the proceedings entirely. I was not given a hearing to object to the amendment and inclusion of the new charges because at that time I had not received counsel on ramifications of the introduced charges.
“My health is weak and continues to be as a result of unhealthy conditions I am living under. The unmerited suffering, I am subjected to as along as my detention remains in place is unbearable as it exposes me to irreparable harm. This exposes me to continuing mental psychological torture,” Lance Corporal Motsieloa argues.