Appeal Court bench incensed

As soldiers censured for stalling trials fighting foreign judge

RELEBOHILE TSOAMOTSE

MASERU – The group of soldiers appearing before the High Court of Lesotho charged with various crimes linked to the country’s political instability have been blamed for stalling their criminal trials.

Judges of the Appeal Court on Monday slammed the soldiers’ apparent attempts to frustrate and block foreign judges engaged to hear these high profile cases. The judges said it is improper and unacceptable for complaints about judges to be taken before other judges for adjudication.

The comments were made during a court hearing where the Crown is appealing a High Court (sitting as the Constitutional Court) decision to grant orders in a case they allegedly lack jurisdiction.

The Director of Public Prosecutions (DPP), Advocate Hlalefang Motinyane, has appealed against interim orders that government should avail to defence lawyers, the Judicial Service Commission (JSC) agreement with government and the European Union (EU) over the engagement of foreign judges secured to deal specifically with high profile cases.

The court had also ordered Lesotho Correctional Serves (LCS) to produce accused persons (soldiers) medical records but prosecution maintains that the court had no jurisdiction over the matter.

The orders stem from the constitutional application by the soldiers to have the judges declared unfit to preside over the cases.

They have laid a litany of complaints against the two judges presiding over their cases and argue that the judge’s conduct warrants investigation. They want the court to direct King Letsie III to appoint a tribunal to inquire into the fitness of the judges

When told about the merits of the pending application, it prompted numerous questions from the bench. The judges questioned if there was anything preventing the soldiers to lay their complaints before the JSC.

During the hearing on Monday, one of the presiding judges, Justice Van Der Westhuizen, raised concern over the manner in which the soldiers have gone about their complaints about the judges.

“Is it okay for litigants if dissatisfied about a judge’s conduct to go next door and request another court to order that a judge be impeached?” Judge Westhuizen asked. He said it was strange that a court is asked to order impeachment.

“Is it a practice in Lesotho for one to approach the court to order impeachment or it can be referred to the JSC? I find approaching the judge next door strange,” he continued.

Judge Westhuizen was backed by Justice Moses Chinhengo who asked the soldier’s lawyer “do you agree that the main case is aimed at ensuring that those judges do not hear the trials,”

Advocate Motiea Teele replied that his clients are aggrieved by the issues raised in their application and have a right to approach the court to which Chinengo said “I am talking about the ultimate objective of their case, I am not disputing rights of the litigants, everyone has a right.”

Teele argued that the interim prayers granted by the lower court were not substantive but procedural. He argued that the Constitutional court had jurisdiction on the matter for reasons that courts are entitled, on matters of procedure to give any order.

“A court can make an order prema facie, without saying the outcome is likely to turn out that way, the test is whether prayers granted have an effect on the final order,” he argued.

President of the court, Justice Kananelo Mosito, remarked that the challenge is that the court assumed jurisdiction without interrogating the question. The court did not give reasons for its interim orders but by issuing the said orders, it assumed jurisdiction.

For his part, Advocate Christopher Lephuthing, on behalf of the prosecution, said they have faced challenges with the accused persons frustrating the criminal trials. He told the court that the accused persons launched numerous applications in a bid to prevent the judges from prosecuting them.

He said most of the cases were without merit and an abuse of court process saying the issues raised about the foreign judges were long closed in the Appeal Court decision that declared their appointment constitutional.

He told the court that they were not furnished with reasons for interim orders six months later and maintained that the court ought not to have declining jurisdiction; further asking the court to cancel the constitutional court orders.

In the Constitutional Court application, some of the complaints against the judges include writing in the record what the accused claims not to have said and not giving counsel an opportunity to address the court.

It is said that in one of the trials Justice Charles Hungwe directed that an indictment be read to the accused persons and for the accused persons to plead despite objections that there has not been full discovery of the docket and that defence had not been served with the indictment read to the accused.

The move by the judge, they argue “is indicative of unfitness to hold office.” Justice Hungwe is also accused of not allowing defence sufficient time to prepare for the trial. Also, it is further said that the judge directed that a murder trial in which police officers charged for murdering Police Constable Mokalekale Khetheng proceed in the absence of one Thabo Tšukulu’s lawyer despite being forced by law not to be before court.

Further, Justice Hungwe on June 22, 2020, allegedly recorded and read in the court file that prosecution objected to an application for discovery of an investigation diary saying the defence is not entitled to it.

The complainants say “no such submission was ever made before court” and thereby want the Constitutional Court to find him unfit to hold office as the judge of the High Court.

Justice Tshosa is accused of his conduct in the murder trial involving five soldiers charged for murdering three civilians in Mafeteng in 2012.

It is alleged that the judge on August 14, 2020, denied defence lawyers an opportunity to address him on preliminary issues before reading the indictment and further that he directed that the directed that an indictment be read to the accused persons despite objections by the lawyers that they were unable to consult with clients due to COVID-19 lockdown restrictions

“…the court directed that it is not ready to deal with any other issues other than the accused should be read the indictment and plead.”

When prosecution said its witnesses were on August 14 not before court due to COVID-19 restrictions, the court is said to have directed that the accused be read an indictment and plead and the proceedings be postponed to a future date, the move/decision by the judge according to the accused persons is indicative of the judge`s unfitness to hold office.

Justice Tshosa on September 21 delivered a ruling on a recusal application against him by one Litekanyo Nyakane, the complainants say the ruling was made without hearing evidence and further that when the judge was informed that one Khauhelo Makoae has been certified to be mentally unstable, the judge directed that the trial date be set notwithstanding.