‘Try Kamoli or he walks’

RELEBOHILE TSOAMOTSE

MASERU – High Court judge Justice Semapo Peete has pledged to liberate detained murder accused former army boss Lieutenant General Tlali Kamoli if his trial fails to start on June 21 as scheduled.

Justice Peete said he would invoke provisions of section 12 of the Constitution of Lesotho which stipulates that a person who is charged with a criminal offence, unless the charge is withdrawn, shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.

Lawyers consulted yesterday said this means that if a judge realises that a case has not been dealt with within a reasonable time, they can either release the accused on bail or dismiss the case and liberate the accused.

The judge told the court on Wednesday that the case could not proceed this week because foreign judges engaged to hear the case along with other high-profile cases have not yet arrived in Lesotho.

He said he was ready to be recalled from wherever he would be on June 21, even if he would not be on call, to deal with the case if the case did not proceed.

But Attorney General, King’s Counsel Haae Phoofolo is downright opposed to Kamoli’s release, saying local judges should be ready to hear the case in the event there is no foreign judge available.

“A person like Kamoli will not be released without trial. As Attorney General, speaking to you from New York, I am telling you now that we have long been ready to proceed with the case,” KC Phoofolo told Public Eye last night.

He contended that the Director of Public Prosecution (DPP) has always been ready to try the case, arguing it is “not the office of DPP to blame for the delays”.

“I want you to emphasise the fact that on the side of the prosecution all we want is justice to be done. The view of everybody, and here I am including the judges, was that it is proper and fitting for foreign judges to hear the cases for transparency so that whatever judgment is arrived at, there is no perception of bias.

“Now, we are saying the unavailability of foreign judges cannot be the reason for the cases to collapse. If we don’t get anybody from outside, anyone of these judges can hear the cases…All of them (local judges) can hear the cases if possible,” Phofoolo said.

The former Lesotho Defence Force (LDF) commander is charged along with other soldiers of, among others, the murder of police Sub Inspector Mokheseng Ramahloko and the former army chief Lt Gen Mapaarankoe Mahao.

Phoofolo said the Judicial Service Commission (JSC) was best situated to explain why there had been delays in the arrival of foreign judges because the DDP had always been ready to proceed with the trial.

He said whenever Kamoli appeared in court, the DPP showed its readiness to proceed but the matter was rescheduled because of the absence of foreign judges who have not arrived in the country yet.

“I sit in the JSC and last week I raised the question of donors delaying to release funds to pay the foreign judges and I suggested that local judges might as well hear the case,” he said.

“If the foreign judges are not available on the set date when the matter is expected to resume, we will ask the Acting Chief Justice to allocate the matter to any local judge. The local judges are also competent to hear these high-profile cases.”

Advocate Nnaki Nku who represents the Crown in the matter told the court that the Registrar of the High Court and the Appeal Court had set down the case for June 21.

But Nku’s remarks prompted Justice Peete to demand to know why the case could not proceed as scheduled.

“We have been asked to postpone the matter to that date until we are certain as to whether or not the constitutional case that challenged the appointment of the judges would be appealed,” Nku said.

“What is happening ’M’e Nku? Have you not heard anything about funds from the European Union (EU)?” Justice Peete asked.

“I do not know, I am not responsible, I think the Registrar can explain. What I know for a fact is that I am ready to proceed. My witnesses are actually waiting outside,” Nku responded.

Justice Peete then ordered the Crown to invite the Registrar into the courtroom to explain the absence of the foreign judges.

High Court Registrar, Advocate Ponts’o Phafoli, informed the court that after consulting with Acting Chief Justice ’Maseforo Mahase it was agreed that the matter should be postponed to a later date to iron out issues delaying the arrival of foreign judges.

Judge Peete said the postponement of high-profile cases is not good for the international reputation of Lesotho and cannot be fair to the accused.

“This is not good for the international reputation of Lesotho; you cannot just take the accused to court and postpone their cases,” he said.

“Section 12 of the of the Constitution of Lesotho is clear that the accused should be charged within a reasonable time, I will employ section 12 of the constitution if I have to deal with this matter again.”

Lawyers who spoke to Public Eye last night on condition of anonymity said the section means that some of the options available to the judge are; dismissing the case and freeing the accused or granting them bail.

Kamoli is charged along with Major Pitso Ramoepane, Captain Litekanyo Nyakane, Corporal Mohlalefi Seitlheko and Sergeant Heqoa Malefane.

The charges stem from the January 27, 2014 bombings of the Moshoeshoe II homes of Liabiloe Ramoholi (now First Lady ’Maesiah Thabane), ’Mamoshoeshoe Moletsane and the Ha Abia residence of former Police Commissioner Khothatso Tšooana.

The accused are charged with 14 counts of attempted murder related to the bombings.

The matter against the accused has been postponed on several occasions because the engaged imported judges have not arrived in Lesotho.

One of the appointed judges, Justice Charles Hungwe was in Maseru for a pre-trial conference, but the accused challenged the constitutionality of his appointment.

Kamoli, along with former defence minister Ts’eliso Mokhosi and other soldiers, challenged the appointment of Charles Hungwe and any other foreign judges appointed to hear their criminal cases.

They alleged that his appointment was tainted by the involvement of the executive, adding the judges had been mandated to ensure the accused got the death penalty if convicted.

The Constitutional Court, however, ruled that government acted constitutionally for its part in the appointment of the judges.