Mohalenyane Phakela
MURDER-ACCUSED former army commander, Tlali Kamoli, and his co-accused soldiers have reiterated their claims of innocence in the June 2015 murder of army commander, ‘Maaparankoe Mahao.
They say witness statements at the 2015 mutiny inquiry at the army’s Court Martial will prove their innocence. The Court Martial was set up to probe 23 soldiers for alleged mutiny against Kamoli’s command. All 23 mutiny suspects were acquitted and the Court Martial was disbanded by the Thomas Thabane-led administration in 2017 for lack of evidence against the suspects. It is not clear how these statements will prove Kamoli and his accomplices’ innocence.
Kamoli and his co-accused further allege that prosecutor, Shaun Abrahams, is determined to secure their conviction and death sentence at all costs. Hence, he is denying them a right to a fair trial by refusing to furnish them with the witness statements they say would prove their innocence.
They make the claims in their joint application filed last week in the High Court for an order compelling the Crown to furnish them with the said witness statements.
Kamoli and eight others are on trial for the 25 June 2015 murder of Lieutenant-General (Lt-Gen) Mahao. His co-accused are Captain Litekanyo Nyakane, Captain Haleo Makara, Sergeant Lekhooa Moepi, Sergeant Motsamai Fako, Corporal Marasi Moleli, Corporal Motsoane Machai, Corporal Mohlalefi Seitlheko and Corporal Tsitso Ramoholi. They have denied murdering Lt-Gen Mahao. They claim that he was shot and killed while resisting lawful arrest for allegedly leading a mutiny against Kamoli who had been restored to the army command by the then Pakalitha Mosisili-led seven parties’ coalition in early 2015.
The trial is before Judge Charles Hungwe. It is expected to proceed on 16 May 2022. By then, it is expected that Justice Hungwe would have ruled on Kamoli and his co-accused’s application to be furnished with the witness statements they say are crucial to their defence.
In his affidavit filed in support of their joint application, Captain Nyakane argues that two witnesses, who have already testified in their trial, confirmed that there was indeed a mutiny against the command of Kamoli by Lt-Gen Mahao and others in 2015. The two witnesses are Lance Corporal Mokete Halahala and Retired Colonel Thato Phaila. They testified in June and July 2021 respectively.
“For edification of the court, the first and second witnesses admitted allegations of mutiny plots within the Lesotho Defence Force,” Captain Nyakane states in his founding affidavit. Kamoli and the other accused soldiers have all aligned themselves with Captain Nyakane’s affidavit.
“Of significance was the testimony of the second witness (Phaila) who testified that there was evidence of a mutiny and during a cross examination exchange with Advocate Napo Mafaesa, he stated that if anyone were to say there is no evidence of mutiny, such will be a lie.
“The Crown objected when the witness was pressed on the issue and the court sustained the objection. But as the matter stands, the testimony of the witnesses that have appeared before the honourable court revealed that certain documents relating to the mutiny allegations were not disclosed to the defence. The lead Crown Counsel (Abrahams) is also on record saying his objection is on the technical issue of admissibility. It is manifestly clear that without records of the mutiny charges, our fair trial rights are rendered illusory.
“It is sufficient to indicate that in terms of section 12(1) of the constitution, persons charged with criminal offences such as ourselves must be afforded a fair hearing with the Crown being bound to avail all material to us including such material that may exculpate us from criminal liability. The conduct of prosecutions runs affront to this Constitutional imperative.
“In the same token, the provisions of section 12(2)(a) and (c) make it clear that we must be presumed innocent until we shall have been proved guilty. We are entitled to be given adequate facilities for purposes of enabling us to prepare our defence. This entails an obligation on the part of the Crown to avail all materials to us including materials that may be favourable to us and which may ultimately lead to our acquittal.”
Captain Nyakane and his co-accused argue that despite the existence of the witness statements, Adv Abrahams had steadfastly refused to furnish them with the documents in order to sabotage their defence.
They accuse Adv Abrahams of doing that to ensure they are convicted and sentenced to death.
“The Crown Counsel did not make disclosures of all materials which would tend to demonstrate that we are innocent of the criminal offences with which we are charged. It is a story that will demonstrate how evidence favourable to us is not discovered with a view to ensuring that the honourable court does not achieve its fundamental duty of discovering the truth. The motive, consistent with the statement of the Crown Counsel, that we should be found guilty and sentenced to death, is precisely set out.
“The Crown Counsel is not prepared to avail to the defence and its clients documents that tend to show that we are innocent and that these documents are consistent with our defence to that effect. Throughout his opening address the Crown Counsel, appeared to be stating facts instead of indicating what evidence he intended to call to show those alleged facts in violation of section 175 (1) of the Criminal Procedure and Evidence Act.
“He then said that should this court return a verdict of guilty on the charge of murder, ‘the prosecution will seek the imposition of the death penalty’. I have been advised that the timing of this statement was not only reckless, irresponsible and outright irregular by the Crown Counsel, it clearly showed that he was prepared to influence the court and would do anything to secure our conviction.
“This approach, when weighed with the evidence of the second witness (Phaila (who accused the Crown Counsel of concocting and falsifying evidence, a matter that this court declined to investigate despite its seriousness), leaves us in no doubt that the Crown Counsel are conducting this trial with a view to ensuring that we are convicted at all costs.
“They are not conducting the trial dispassionately and impartially, but are clearly partisan and desirous that the applicants be convicted notwithstanding lack of evidence suggesting the commission of a criminal offence,” Captain Nyakane states in his affidavit.
