Soldiers lose bid to remove prosecutor



MASERU – Incarcerated former army boss Lieutenant General (Lt Gen) Tlali Kamoli, along with eight soldiers charged in relation to the murder of Lt Gen Maaparankoe Mahao’s have lost a court bid to remove Advocate Shaun Abrahams as lead prosecutor in their case. High Court judge Justice Charles Hungwe yesterday dismissed the application by the soldiers and directed the lawyers to agree on the date of hearing so as to make progress on the criminal trial.

He did not give reasons for his decision but said “the application is dismissed in its entirety,” Justice Hungwe said the full judgment will be emailed to the lawyers involved. Abrahams, along with fellow prosecutor, Advocate ’Naki Nku, were accused of fabricating and manipulating evidence in an effort to ensure that the nine suspects are convicted and subsequently jailed.

The soldiers cited evidence by one Colonel Thato Phaila wherein he testified that Abrahams fabricated evidence and requested him (Phaila) to testify according to the fabricated evidence. Abrahams was particularly accused of fabricating state witnesses’ written testimonies to suit an opening statement he made when the trial commenced in January last year.

In his opening statement, he asked for a death penalty, should the accused persons be found guilty and went ahead to narrate that Colonel Thato Phaila, Captains Sechele and Hashatsi took instruction from Kamoli and regularly reported progress about Mahao’s killing to him.

In making the said statement (opening statement), suspects argued that Abrahams exceeded statutory obligations set in the Criminal Procedure and Evidence Act (CP &E) and lied about what really transpired. They said they fear that they would be subjected to an unfair trial should the two prosecutors continue to prosecute their case.

Sergeant Lekhooa Moepi deposed to an affidavit on behalf of fellow accused persons and told the court that Colonel Phaila never suggested that he reported to Kamoli but that all unit commanders, including himself, reported and gave briefings to Major General Khoantle Motšomotšo and Major General Lineo Poopa.

This, he said, was against Abrahams’ statement that Phaila, Captains Sechele and Hashatsi took instruction from Kamoli and regularly reported progress about Mahao’s killing to him. Moepi brought to the attention of the court that instead, Phaila explained in his evidence that General Kamoli was on leave of absence in the neighbouring South Africa when the operation to arrest mutiny suspects started yet the lead prosecutor said they were reporting to the 9th Accused (Kamoli).

On Abrahams opening statement that Kamoli authorised an operation to arrest Mahao on June 25, 2015, Moepi said the statement contradicts that of witnesses in that Phaila made it clear that the operation to arrest Mahao and other mutiny suspect was authorized by the then Acting Commander.

According to Moepi and his co-accused, no evidence implicating any of them has been led by the two state witnesses who testified so far.

Instead, they allege that Lance Corporal Mokete Halahala (1st state witness) provided contradictory statements: that there were no different teams involved in the arrest of persons suspected of mutiny within the Lesotho Defence Force only to later say there were different teams (arrest team, security team, surveillance team, interview team) when led by Advocate Abrahams.

For that Phaila was also said to have testified that investigators can attest to the fact that evidence has now been fabricated and insisted that he was no longer prepared to be re-examined by Abrahams.

“He testified that his written testimony was fabricated by the 2nd Respondent (Advocate Abrahams) who was consulting him with the first (DPP) and the 3rd Respondent (Advocate Nku). He testified that this explained his contradictory statements,” Moepi said in his affidavit.

The circumstances led the suspects to believing that Advocate Abrahams has a special interest in the matter and is biased against them, that he does not prosecute dispassionately but is partisan to ensure that they receive the death penalty as he wished from the first day he made his opening address but Judge Hungwe dismissed all the allegations.

Abrahams, Judge Hungwe along with two other judges were engaged by government to prosecute several high profile cases involving members of the security agencies as per Southern African Development Community (SADC) recommendation that those implicated be prosecuted using the best international standards.

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