MASERU – In a damning claim that could open Pandora’s box, detained former army chief Lieutenant General Tlali Kamoli says Lieutenant General Maaparankoe Mahao would not have been killed if he had not been fired in August 2014.
He said if he had not been “suspended from full duty” and banished out of the country, Mahao “could not have possibly met his untimely death”.
Prime Minister Thomas Thabane relieved Kamoli of his command during his first stint as premier between 2012 and 2015.
The claims are contained in papers filed in the High Court in which Kamoli is seeking to be released on bail from prison in a matter set to be heard on March 18.
Kamoli submitted to the court that he had “no involvement at all in any matter that had to do with the demise” of Mahao.
He claimed further in the papers that “If it was expedient that Mahao ought to have been arrested”, he could have arrested him “singlehandedly”.
Kamoli was relieved of his post as head of the Lesotho Defence Force (LDF) by Prime Minister Thomas Thabane in August 2014 and replaced by Mahao.
But Kamoli refused to step aside, challenging the legitimacy of his removal.
In the ensuing standoff, the army attacked police stations and the State House, forcing Thabane to flee the country claiming the attacks were an attempted coup.
Mahao’s residence was also attacked and his cars riddled with bullets.
Kamoli, Mahao and Khothatso Tšooana, then Commissioner of Police were later sent abroad on special leave by Sadc Facilitator Cyril Ramaphosa while he tried to resolve the security crisis.
Kamoli returned home before his two colleagues after Thabane lost elections held in February 2015 and was forced to cede power to his perennial rival, Pakalitha Mosisili.
Mahao and Tšooana followed him home soon after.
Mosisili reinstated Kamoli to his position as LDF commander in May 2015 and backdated the reinstatement to August 2014 when Thabane had fired him. Mosisili also reversed Mahao’s appointment, saying Kamoli’s dismissal and Mahao’s appointment were illegal.
Shortly before Kamoli’s reinstatement, the army started arresting soldiers accused of planning an anti-Kamoli uprising while a legion of other soldiers fled the country and hid in South Africa.
Mahao was shot on June 25 2015, allegedly while resisting arrest by soldiers sent to arrest him for supposed complicit in the mutiny plot.
His family has always differed with this account citing the averments of his nephews who were with him during the incident at Mokema.
The Southern African Development Community (Sadc) then established a judicial commission of inquiry into the killing and found that the alleged mutiny plot was highly suspect and recommended stern action against Mahao’s killers. It recommended that Kamoli be fired.
Sadc also recommended amnesty covering the arrested soldiers and those that skipped the country. The mutiny charges have since been quashed and the former suspects have been reintegrated in the army.
Mosisili’s government reluctantly received the Sadc report and apparently ignored the recommendations. Kamoli only resigned in 2016 amid mounting pressure by the international community.
In his court papers, Kamoli said that there had never been “a point in time at which even a single witness made allegations against him of having had a hand in either the operation or any process that led to the arrest of the late Maaparankoe Mahao”.
He indicated that this was why even after spending, “in terms of chronological count”, three years in detention awaiting trial, he has not been served with the docket “that concerns the alleged murder of the late Mahao”.
He indicated further that he has not seen a single witness statement that connects him “in any iota” to Mahao’s death.
Kamoli said he was detained in 2017 for offences unrelated to Mahao’s death but only joined to the case which concerns the murder of Mahao in 2019.
Kamoli told the court that there has not been a time at which he was alleged to have had a hand in Mahao’s murder “because even to the investigators this issue long became common cause” that he had not participated in the killing.
Kamoli was arrested in October 2017, a few months after Thabane returned to power, and charged with 14 counts of attempted murder, unrelated to Mahao’s murder. This was before alleged Mahao’s killers were arrested.
The charges he is facing include the bombing of the homes of commissioner Tšooana, the then girlfriend, now wife of Prime Minister Thabane Liabiloe Ramoholi, and her neighbour in Moshoeshoe II.
The charges also include the army’s attack on police stations on August 30, 2014 during which Sub-Inspector Mokheseng Ramahloko was shot dead.
He was denied bail by the High Court.
Alleged Mahao killers were only arrested and charged in November 2017.
Those soldiers 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.
Kamoli was joined as the ninth accused in Mahao’s murder in January.
He wants to be released on a bail amount fixed at M3,000 in connection with the three cases of bombings, murder of Ramahloko and murder of Mahao.
The former LDF commander said there is only one judge from outside Lesotho who has been appointed to deal with cases that concern allegations against members of the police and the army.
The appointment of that judge, he added, has not been accepted and is therefore yet to be subjected to a constitutional challenge.
While that is happening, which he has no control over, he will be languishing in prison although he has not been sentenced to serve any punishment by a court of law, he further submitted.
He also submitted that his health has deteriorated and will, in this regard, apply for leave to call his medical doctor to give verbal testimony.
The delay that ensued in the cases that he is facing, “is of such nature that it constitutes exceptional circumstances” for him to be released on bail, he said.
“The trial is not likely to start anytime. It is not even anticipated that the trial shall have started and been concluded in 2019 due to the fact that there is a shortage of judges in the High court; there is a backlog of cases of a similar nature,” he said.
“DPP (Director of Public Prosecutions)’s office is overwhelmed with such cases. The trial date is yet to be set. The DPP does not have an idea as to when the trial date shall be after at least in the year 2019.
“The government has not yet started to make preparation for employment of additional judges so that murder trials in the High Court can be dealt with within reasonable time provided under section 12 of the constitution,” he said.
According to Kamoli, “the prospect again of lengthy prison stay without a case being commenced constitutes additional exceptional circumstances” on which he should be released on bail.
Last week, former defence minister Ts’eliso Mokhosi told the Constitutional Court foreign judges hired to hear “high profile” cases, including his and Kamoli’s, had been handpicked to ensure they got the death penalty.
In a founding affidavit filed of record, Mokhosi alleged government had scoured the southern African region for judges wont to doing its bidding, adding the executive’s active participation in scouting for the jurists was tantamount to interference in a judicial function.
Mokhosi along with 15 army and police officers – including former army commander Kamoli – has approached the Constitutional Court to send Zimbabwean judge Justice Charles Hungwe back home.
They insist his appointment had been “tainted” by the involvement on government, especially Prime Minister Tom Thabane, Attorney General Haae Phofoolo, foreign affairs minister Lesego Makgothi.
This, he argued, had added to the body of evidence that should persuade the court that the trialists would not receive a fair trial as government and its chief officers were interested parties in their cases.
“The involvement of the executive in the recruitment of the first respondent and any foreign judge to serve as acting judges of the High Court of Lesotho undermines the independence of the judiciary enshrined under section 118 of the Constitution buttressed by the provisions of the Administration of the Judiciary Act of 2011.
“We reasonably fear that the particular judges have been handpicked so that they could convict us and impose stiff penalties, including death penalty, given that it is still applicable in Lesotho,” Mokhosi said in the affidavit deposed on behalf of all applicants.
All the applicants, except Mokhosi, have been languishing in remand prison for almost two years without trial while government looked for foreign judges to preside over their cases.
Attorney General (AG) Haae Phoofolo has, however, rubbished these claims, saying the recruitment and appointment of the judges was left to the relevant authorities with government only providing the necessary logistics.
In an answering affidavit to an application by Mokhosi together with 15 army and police officers bidding to nullify the appointment of foreign judges, Phoofolo said government merely discharged its Constitutional obligation to ensure the effectiveness of the judiciary by requesting international assistance.
After that, he added, neither government nor Prime Minister Motsoahae Thabane played a further role in the recruitment of the judges besides triggering the process leading to prosecution of suspects implicated in the Phumaphi Commission report.
“The Prime Minister had played no role in the recruitment of the judges but as the responsible Prime Minister who has obligations to implement the Phumaphi Commission recommendations, he was under the obligation to trigger a process that would lead to prosecution of suspects implicated therein.
“The recruitment and appointment were done by the relevant authority and not the Prime Minister or under his control and supervision,” he added.
Phoofolo insisted the recruitment of the judges was left solely to the Judicial Service Commission (JSC) and that the appointment of Zimbabwean Justice Charles Hungwe was confirmed by His Majesty the King in terms of the Constitution without any interference from the Executive.