National stability set to trump criminal justice for victims

. . . hired foreign judges set to pack their bags

RELEBOHILE TSOAMOTSE

MASERU – The foreign judges hired to preside over criminal trials could be going home soon as their tour of duty is likely to end now that the government initiated steps to stop the criminal trials they were hired to prosecute.

Zimbabwean judge, Justice Charles Hungwe and his Botswana counterpart Onkemetse Tshosa’s mandate in Lesotho could end if a Bill before parliament sails through.

The tabling of the National Peace and Unity Bill (NPUB) in parliament last Friday will see the judges return to their home countries without trying the suspects.

This is what the suspects have always wanted. The men standing trial opposed the judge’s appointments from the very beginning but the court overruled them several times.

When the Judicial Service Commission (JSC) hired the three judges in 2019, they were brought in to prosecute high profile criminal suspects implicated in numerous atrocities that had rocked the country in the preceding years.

Their deployment was a result of the Southern African Development Community (SADC)’s recommendation(s) that those implicated in the death of slain army commander Lieutenant General (Lt Gen) ’Maaparankoe Mahao and other similar offences, be prosecuted using the best international standards.

The government and SADC then resolved to specifically hire “foreign judges” which they said would not only remove perceptions of bias from the local judges but would also relieve the High Court judges who are said to be already dealing with a backlog of cases due to understaffing in the High Court.

The judges were then engaged for an 18 months’ period under the financial assistance of the European Union (EU).

EU pledged over M15 million for recruitment of five judges, but only three were hired, one of whom Justice Kabelo Lebotse subsequently resigned citing what he described as unfavourable working conditions.

The remaining judges’ contracts ended in April this year but no substantial progress has been made on the cases. The government, in consultation the EU, was forced to extend the contracts for an additional six months so as to dispose of the trials but the tabling of the (NPUB) in parliament forebodes the judges’ departure.

National Peace and Security Bill

From endorsing SADC recommendation that those implicated in criminal offences be prosecuted using the best international standards, the government is now pushing for amnesty for perpetrators fingered wrongdoings.

Acting Law and Justice Minister, Advocate Lekhetho Rakuoane, last week tabled the NPUB. The Bill seeks to facilitate amnesty for suspects of human right violations, and if enacted it will result in the suspension of all high profile trials that attracted the involvement of SADC in the country.

According to the Bill, there shall be a National Peace and Unity Commission which is said to be established “for the purpose of building sustainable national peace, security, stability, unity and social cohesion by creating an opportunity for both victims and perpetrators of gross human rights violations.”

The Commission, it states, will hear evidence in a comprehensive manner so as to determine the truth about gross violations of human rights emanating from acts, omissions or offences associated with political conflicts or motives committed in the country.

Subsequently, it is said that there will be an amnesty “to persons who make full disclosure of all relevant information of their wrong doings,”

Retired army boss, Lt Gen Tlali Kamoli along with soldiers charged with him for various offences ranging from murder, attempted murder and treason will benefit from the establishment of the commission.

Also set to benefit should the Bill become law are leaders of the Lesotho Congress for Democracy (LCD), Mothetjoa Metsing and Movement for Economic Change (MEC), Selibe Mochoboroane.

While some MPs and the public are opposed to such an amnesty, the SADC Facilitation Team to Lesotho has exerted pressure on government to facilitate a process leading to the amnesty.

Team leader, South African retired Deputy Chief Justice, Dikgang Moseneke, on numerous occasions insisted that a peace deal be struck to protect the ongoing reforms.

Judge Moseneke’s Intervention

His is mainly facilitation and oversight over the ongoing reforms but his intervention was criticized when he said no political leader should be charged until the reforms are completed.

His stance came at the back of the prosecuting authority’s stance that there existed a case to answer for the politicians Metsing and Mochoboroane.

The Director of Public Prosecutions (DPP), Advocate Hlalefang Motinyane, indicted on several occasions to the court that the two should be charged. She was seeking to join them as accused persons in a murder case in which four soldiers have been charged in relation to police Sub Inspector Mokheseng Ramahloko’s murder.

The accused will face treason as an additional charge but the politicians have been blocking their indictment with a plethora of interlocutory applications.

From claiming immunity under the controversial Moseneke-authored Clause 10 of a 2018 Memorandum of Understanding between government and opposition parties, bemoaning pretrial rights and opposing the DPP’s move to joining them with suspects already in detention.

Moseneke later sold government the idea of a Transitional Justice Commission (TJC), wherein he acknowledged that the process will lead to the suspension of all high profile cases to find a long lasting solution to the instability rocking the country.

Moseneke said the TJC would, among other things, consider the deferment of the high-profile trials of politicians and any other “politically-motivated trials” until after the full implementation of the multi-sectoral reforms.

In his latest letter addressed to Prime Minister Moeketsi Majoro, Moseneke threatened that the SADC will be advised to take action against individuals delaying or threatening the reforms.

In his words, the retired judge says the fate of the peace and stability mechanism drafted by the facilitation team rests with the government.

“Your Excellency, the Facilitation Team understands perfectly well that the reform process by its nature is a political process. The Facilitation Team equally notes and acknowledges that the reform process has now reached a crucial point — a sensitive and critical moment where difficult political decisions need to be taken by the political leadership of the nation supported by its people.

The Facilitation Team drafted the Peace and Stability Mechanism Framework document at your government’s request and its fate rests, not on the Facilitation Team or SADC but, on your government and the Basotho nation.”

Under the circumstances, substantial progress has not been made in all the cases. The first witness in the Mahao murder trial was only called on Thursday this week and led in evidence.

Why the trials dragged on for two years

Different factors have been attributed to the delay in the cases with the defense and prosecution passing the buck on each other. However, numerous interlocutory applications resulted in the main trials being put on hold and in most cases, the applications were only settled in the court of appeal.

These range from their (judges) appointment, suing over state-funded legal fees, recusal by the judges and the latest call for their impeachment.

The three judges’ appointment was subjected to constitutional scrutiny with suspects arguing the appointments smacked of executive interference with the judiciary.

Suspects vehemently charged that the hired judges would not be impartial alleging they have been brought to impose capital punishment on them.

The High Court (sitting as the Constitutional Court) dismissed them on May 2 ,2019, and the Court of Appeal later upheld the judgment.

Lawyers said “high profile suspects” had also asked the government to adjust state-funded (pro deo) fees awarded to their clients but Attorney General (AG) successfully petitioned the High Court to cancel the award. Further, court bids to have Justice Hungwe and Tshosa recuse themselves were also dismissed by the judges themselves for lack of merit.

In all this instances, the trials had to be put on hold for the judges to determine the interlocutory applications. The latest hiccup happened in September 2020 when the suspects launched a court bid to have the two judges impeached.

The matter remains pending in the High Court. Prosecution has also been blamed for its conduct in the trials after it took over a year for prosecution to amend charges in some of the cases.

Recently, the prosecution has indicated their intention to amend and add charges in the case where Kamoli and company have been charged in relation to bombings at the residence of former First Lady ’Maesaiah Thabane.