MASERU – The army has come out guns blazing in defence of its continued shackling of murder accused Captain Boiketsiso Fonane while in military detention, saying he signed up for such treatment when he enlisted. Public Eye can report the Lesotho Defence Forces (LDF) is adamant Fonane’s treatment conforms to both the constitution and military law and is thus, lawful.

This is despite a cacophony of protests from rights groups – the Transformation Resource Centre (TRC) and Lesotho Council of Non-Governmental Organisations (LCN) – which insist the army is violating Fonane’s inalienable rights. These include the right not to be subjected to cruel and inhumane treatment; and not to be tortured.

But LDF lawyer, Advocate Christopher Lephuthing this week said there is nothing untoward about Fonane being kept in leg irons. Lephuthing who represented the commander of LDF in a case against Fonane said Fonane’s chaining was “within the culture of the military”. Lephuthing told Public Eye in an interview that soldiers’ basic rights, unlike those of other citizens, were limited upon joining the military.

“It is not abnormal, it is within the culture of the military setting and the constitution supports limitations of their rights to a certain specified extent. “He is alleged to be have been involved in the killing of the most senior person of the army and that is a very serious offence in the army hence his arrest, that is why he has also been separated from other soldiers and is detained at the Makoanyane Barracks,” Lephuthing added.

Last November, petitioned the High Court to order his release from military detention but his application was two weeks ago dismissed by Justice ’Masehlophe Hlajoane. He is linked to a mutiny plot that led to the assassination of former army commander Khoantle Motšomotšo on September 5, 2017.

Fonane is facing three counts of mutiny: taking part in a mutiny involving the use of violence, inciting four officers to take part in an intended mutiny as well as failing to report without delay that a mutiny was taking place or was intended. A court martial hearing his case together with his co accused has been postponed to November this year.

Fonane, recently fell gravely ill and spent two weeks battling for his life in Makoanyane Military hospital prompting his lawyer Adv. Letuka Molati to write to the army. In a letter dated July 4, this year, Molati demanded to know why his client has been in shackles for nearly a year. “The client remains chained by the legs from September 17th until present and continuously, we implored your good office to make a decision on the matter in view of the fact that the client tabled this issue on the provost marshal many months ago but there has been no decision made on the issue,” Molati said in his letter.

The LDF on July 16 replied to Molati saying it had established from military police that his client had been chained for security reasons. “The circumstances surrounding his case coupled with his conduct necessitated this condition,” reads part of the letter signed for Lietenant General E. M Letsoela, the Chief of Defence staff.

The letter also states that Fonane’s situation was being “considered from time to time” and urged Molati to encourage his client to cooperate with his handlers.“You are therefore advised to encourage your client to cooperate with provost officers and improve his conduct in order to ease considerations of detention conditions,” the army said.

The TRC last week maintained human rights apply to everybody including soldiers, adding that Fonane should be treated like any other citizen. TRC Human Rights Officer Lepeli Moeketsi said the continued detention of a number of soldiers without charge and Fonane’s desperate situation was a violation of their basic human rights.

“These people are only suspects who also deserve a fair trial and respect for their human rights,” he said. Seabata Motsamai of the LCN echoed Lepeli labeling Fonane’s chaining inhumane. “The law is against any form of torture and chaining itself is inhumane and unacceptable.” Motsamai added international law deplored inhumane treatment of individuals, including prisoners and soldiers, citing the Universal Declaration of Human Rights of the United Nations which has crystalised into international customary law.

Fonane in November last year approached the High Court seeking an end to his continued detention claiming no charges had been levelled against him at the time, prompting the army to establish a court martial to hear his case together with his co accused. The High Court found his detention to be within the provisions of the law and dismissed his application


“The unit commander exercised his discretion in compliance with the provisions of the relevant Act and regulations in having kept the applicant in close arrest, his actions cannot be faulted as a result,” reads part of the judgement. Fonane had asked the commander of LDF to release him from detention unconditionally and to have his arrest and continued detention declared unlawful.

He submitted in his founding affidavit that he was arrested and detained in military detention from September 17, 2017 and was then detained by police at Police Head Quarters from September 25, 2017. He was subsequently released from police custody but was further detained by the army.

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