MASERU – Former Army chief Tlali Kamoli’s long stay in remand prison has shone the spotlight on Lesotho’s shaky devotion to the rule of law, with rights groups uniting around the narrative the country is sliding inexorably towards the brink.
Kamoli, the poster boy of a band of renegade soldiers that unleashed a reign of terror in the country between 2014 and 2017, has continually seen his bail bid knocked back.
In consequence, the Retired Lt. General and 14 other soldiers, has languished in prison without trial for nearly 18 months, making frequent visits to the Palace of Justice for bail hearings.
This has attracted the attention of judges and rights lawyers who have demanded that his constitutional right to a fair trial be respected.
Last month, High Court Judge Justice Semapo Peete, fearing the circus around Kamoli was now a menace to the country’s well-coiffed international image, threatened to free him if his trial did not begin this month.
Justice Peete said he would invoke provisions of section 12 of the Constitution which states that a person charged with a criminal offence, unless the charge is withdrawn, shall be afforded a fair hearing within a reasonable time.
Although Attorney General Haae Phoofolo cannot countenance this possibility, human rights defenders agree Kamoli and his co-accused should either be tried or be released.
His supporters in opposition ranks – fronted by former deputy Prime Minister Mothetjoa Metsing – have branded the soldiers’ detention, political.
Metsing in an interview with Public Eye while in exile in Johannesburg late last year repeatedly asked: “But what has Kamoli done? Why is he in jail without trial?”
Metsing’s concerns voiced in private have now been trumpeted by the Transformation Resource Centre (TRC) which has publicly questioned government’s commitment to the rule of law.
For a party which swept into office on promises of clean government, the Kamoli issue must now begin to feel like an albatross around the Tom Thabane administration’s neck.
Allowing the Congress parties’ leaning former soldier to walk free, albeit on bail, would somehow be perceived as an embarrassing climbdown for the 4X4 government.
The only option on the table now is to prosecute the soldiers accused of murdering political rivals and wreaking havoc in the country that culminated in a fresh Sadc intervention.
But what has delayed commencement of the trials?
Phoofolo says prosecutors have been ready to put Kamoli and his fellow prisoners on their defence for sometime, shifting the blame for the delayed trial elsewhere.
This would have to be the office of the registrar of the High Court which wants foreign judges to preside over what the media has dubbed “high profile” cases.
Phoofolo himself has repeatedly argued it was crucial to hire non-partisan jurists to preside over the soldiers’ cases.
This, he maintains, would remove any semblance of bias and guarantee undisputed outcomes.
But if foreign judges are not available, Phoofolo says local judges should be ready to hear the cases as “a person like Kamoli will not be released without trial”.
This argument stems from the Southern African Development Community’s – Phumaphi Commission of Inquiry into the upheavals in Lesotho between 2012 and 2015’s recommendation that “members of the Lesotho Defence Force (LDF) who have been implicated in the human rights atrocities should be placed before the courts of law and be prosecuted using best international standards”.
Phoofolo has often explained that because of the political volatility in the country, there were perceptions that local judges – though highly qualified and competent – would not be impartial when dealing with those implicated by the Phumaphi commission.
Kamoli and those accused with him disagree.
In an affidavit deposed in a ConCourt case to block appointment of foreign judges, former Defence Minister Tseliso Mokhosi came short of labeling the judges “executioners”, saying they had been handpicked to impose the death penalty on the accused.
The centerpiece of this application was that government had actively scouted the judges, thus usurping the powers of the judiciary and ripping its independence apart.
He argued that “participation of the attorney general, the legal advisor of the executive and Director of Prosecutions (DDP), the prosecuting authority in our trials gives me an impression that certain judges are picked to achieve certain desired criminal outcomes”.
He said the accused would not receive a fair hearing before the foreign judges.
In fact, the suspects have always rejected foreign judges since they first learnt their cases had been allocated to the jurists.
They have continually told local judges they were confident they would receive fair trials before them.
Last year, Kamoli told Justice Moroke Mokhesi (then an acting judge) that like the rest of other local judges, he believed Mokhesi was competent enough to hear his case and that he did not want foreign judges to preside over his case.
On May 2, the ConCourt, however, disagreed with the applicants and ruled that the government acted constitutionally in initiating the recruitment of the judges and that in doing so, it was providing its assistance to the courts so as to enable them to protect their “independence, dignity and effectiveness”.
“When government approached its development partners and the Southern African Development Community (Sadc) counterparts regard funding of the prosecution of their criminal trials, it was acting constitutionally in terms of section 118 (3) of the constitution,” read the judgement.
This ruling cleared the way for the judges’ recruitment to be finalised and for the eagerly awaited trials that are expected to shed light on how Maaparankoe Mahao, Mokheseng Ramahloko and Mokalekale Khetheng died.
Also, the trials could end speculation on who ordered the bombings at the residence of Liabiloe Ramoholi, the then girlfriend and now wife of the Prime Minister Thomas Thabane and other cases.
But Mokhosi acting with the blessings of his co-accused, has appealed the latest ConCourt decision.
This has put the brakes on the process as an at law an appeal temporarily restores parties to the same situation they had been in before any judgement.
On their part, the prisoners’ stay in prison could be extend even longer pending the apex court decision on their appeal.
Apart from Mokhosi who is currently out on bail, the rest of the suspects’ bail applications failed after the crown persuaded the court that releasing them would jeopardise national security.
But even after the ConCourt had okayed the appointment of the judges, the criminal cases still did not proceed as government said it needed time to finalise logistics for the arrival of the foreign judges.
Zimbabwean judge Charles Hungwe came in January and was sworn in as an Acting High Court judge but he was not immediately able to carry on with his mandate after his appointment was challenged.
Hungwe only came back last week but the latest challenge to the ConCourt judgment that confirmed him has put the skids on his engagement.
This means Justice Hungwe might not proceed with the pre-trial conferences of the criminal trials in August as scheduled.
Hungwe was billed to hold pre-trial conferences to pave the way for trials to start.
Human rights organisations nonetheless say the the suspects have been in remand prison for too long and want the crown to expedite their trials.
The TRC in a recent interview with Public Eye said despite the seriousness of the charges faced by the soldiers, the presumption of innocence should be upheld and their rights respected.
TRC Human rights officer, Moeketsi Lepeli said their continued detention without charge was itself a violation of human rights.
“These people are only suspects who deserve fair trials and respect for their human rights,” he said.
Moeketsi added that his organisation had reported the issue to the African Commission on Human & Peoples Rights.
Advocate Napo Mafaesa who represents Motsoane Machai charged alongside Kamoli for the murder of Mahao said while the accused have been in remand prison for too long, it was settled law that if one was unsatisfied with a lower court’s findings, they can appeal the decision.
He said the accused want a fair trial before an independent and impartial court hence their decision to appeal.
“At the end of the day its their trial and they have instructed us to appeal.”
In this instance, though, the accused’s actions have absolved the creaky justice system which is still reeling from a very public brawl between its two most senior officers – Acting Chief Justice ’Maseforo Mahase and President of the Appeal Court Justice Kananelo Mosito – over rank, of any wrongdoing.