Army Major continues fight for judge’s recusal


The 10 accused soldiers say court has no jurisdiction


MASERU – Murder accused military officer, Major Pitso Ramoepana, says the interests of justice warrants the foreign judge presiding over his case, Justice Onkemetse Tshosa, to step down from the bench in the matter. The incarcerated soldier alleges possibility of bias and an unfair trial should Justice Tshosa continue to adjudicated in the trial.

Ramoepana has been charged along nine other soldiers for murdering three civilians sometime in 2017 and later dumping them in the Mohale Dam. Their case has been postponed for one reason and the other over the past years but the actual trial commenced before Justice Tshosa last Wednesday, with the accused persons pleading to the charges.

However, all ten suspects claim that the court does not have jurisdiction to try them. They also insinuated that they would launch substantive applications in that regard.

Major Ramoepana has responded with a recusal application filed last Thursday. He says he is unlikely to get a fair trial from Judge Tshosa after exposing that the judge was once convicted in his home country Botswana.

“If his Lordship is to preside over my trial and convict me, a reasonable accused in my position and the public out there might view my conviction as revenge or retaliation by His Lordship against me for putting it in the public domain that he (Tshosa AJ) was convicted of a criminal offence and evaded impeachment,” Ramoepana said.

Ramoepana is citing a constitutional application he launched along with other high profile suspects in September last year. One of their prayers was that a tribunal investigating Judge Tshosa’s fitness to hold office be set up.

In the application, Ramoepana deposed to an affidavit and raised allegations such as that Justice Tshosa was convicted of a criminal offence of assault of a police officer in his home country –Botswana, and that he also evaded impeachment by resigning from the judicial office of judge of the Botswana High Court.

He also argued that Judge Tshosa’s conduct in his criminal case is indicative of unfitness to hold office as judge of the High Court.

The case remains pending before the Constitutional Court while the interim orders issued have been appealed against. It is the allegations in the said application that Ramoepana believes he will not sit well with the judge and result in him being biased.

Also, for being a respondent in the constitutional application, Ramoepana says Tshosa is an opponent and should, therefore, not preside on the criminal trial.

He argues that should he be acquitted, a reasonable member of the public may conclude that the acquittal was a demonstration that the judge held no grudge against him and is a man of integrity not necessarily because of any innocence on his part.

He further claims that should Justice Tshosa acquit him, a reasonable perception might be held by members of the public that the acquittal was an attempt on the part of the judge to influence him into dropping the case he has brought against the judge (Tshosa’s fitness to hold office be investigated.)

Ramoepana argues that whichever way the case against him goes, the administration of justice will be brought into dispute if its Judge Tshosa presiding.

“I verily aver that whichever way the case against me eventually goes, for as long as it is presided over by Tshosa AJ under the circumstances of the pendency of constitutional case 17/2020 the administration of justice is bound to be brought into disrepute…”

He maintains that Judge Tshosa’s criminal record and resignation to evade impeachment conduct render him unfit to hold office as a judge and to preside over his criminal trial.

He also tells the court that should the Constitutional Court rule in his favor, proceedings in the criminal trial will be tainted in that Judge Tshosa will be barred from proceeding with the trial pending the probe into his fitness to hold office and that such an outcome will warrant that the trial be started de novo before a different judge.

In an affidavit accompanying the recusal application, Ramoepana list instances he appeared before Justice Tshosa and felt the judge was bias against him. He says Justice Tshosa ordered on December 7 2020 that their criminal trial be deferred to allow the constitutional court to dispose their matter only for him (Tshosa AJ) to overturn and order that parties appear before him on March 12 for a pretrial conference.

This, he says, happened despite objections by his lawyer and requests to address the court on the matter. “…the court would not hear him out on the ground that it had decided the matter on March 2, 2021.”

In ordering that the trial proceeds on March 12, Ramoepana says judge Tshosa agreed to review his own order in circumstances where there was even no notice filed of record addressed to the accused persons. This he says “creates a perception in my mind that his Lordship Tshosa AJ is not bringing an impartial mind to bear in presiding over my trial.”

More to his suspicions that Judge Tshosa will be biased, Ramoepana says the judge remarked on March 24 that he was concerned that his (Ramoepana) illness was conveniently coincidental with the case proceedings.

“I aver that His Lordship remark is a further indication of his lack of impartiality in this matter in as much as he is fully aware that I am suffering from a chronic illness and the fact that I can one day wake up feeling unwell should not surprise anyone least of all a judicial officer.”

Further, he narrates that on March 25 when he was asked to plead to the charges, his lawyer arose and told the court that he has instructions to raise an objection but was shut as the court ruled that it was not going to hear anything from the lawyers.

When called to plea, he says he argued that the court lacked jurisdiction but the court ruled it has entered not guilty plea. When one of the defense lawyers asked to address the court on lack of jurisdiction, the crown is said to have objected with the court interjecting and raising provisions of Section 160 (CP&E), that the pleas as to jurisdiction should have been raised on notice. By interjecting as it did, Ramoepana says the court was advancing prosecution’s case.

“I verily aver that this is another indication of the court’s lack of impartiality in this proceedings by advancing the prosecution’s cause the court descended from the bench and entered the fray. I contend therefore that His Lordship Tshosa AJ has clearly demonstrated lack of impartiality.”

On top of that, Ramoepana says when he appeared before Judge Tshosa on March 26, his lawyer inquired as to why a plea of not guilty has been entered when he instead pleaded lack of jurisdiction to which the court responded it was because there was no notice about lack of jurisdiction.

This he says is despite the fact that the court on the same day morning refused a notice of motion which explains among other things why there was a delay in filing the notice/plea for jurisdiction.

Judge Tshosa’s refusal to look into his papers is an indication that he is not impartial in the treatment of parties of parties before court, more so when it has been allowing the Crown to continuously serve upon accused persons’ witness statements even on the eve of the trial, Ramoepan said. For that, he says the judge should recuse himself from the case.

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