MASERU – The Director of Public Prosecutions (DPP) Advocate Hlalefang Motinyane has asked the High Court to deny bail for detained former army commander Lieutenant General Tlali Kamoli and eight other solders. Motinyane says the soldiers will attempt to influence witnesses once they are released because they know the witnesses and the evidence to be presented against them.
The DPP’s office is not responsible for the several years during which the case has been stalling as alleged, she said, and instead puts the blame on the accused persons for launching unnecessary applications that went as far as the Court of Appeal. Motinyane says this in her answering affidavit to an application by Kamoli and the eight solders charged with him in relation to the assassination of army commander, Lieutenant Maaparankoe Mahao.
She says the complainants’ submission that similarly placed persons with them were released on bail and that theirs were refused on political grounds is irrelevant for the purpose of their bail “in as much as that is not the test or the principles to be applied regard being had to the fact that each and every case must be judged on its own merit.” Kamoli and company criticized the courts’ denial of their bail applications on “political reasons” two weeks ago.
They said their bail petitions have on several occasions been dismissed because their cases “are politically designated high profile cases hence a different approach” further alleging that they have not received a fair trial each time they sought bail because theirs is labeled high profile.
In their petition, they provided a list of over 50 soldiers, police officers and politicians who they say are in a similar category as theirs but were never denied bail yet they presented no other evidence before court other than bail requirements. Motinyane asked the High Court not to accede to their request saying the court is not in the position to know evidence that was placed before judges who granted bail in those cases. She argued that the accused have not disclosed exceptional circumstances that warrant their release on bail.
“The petitioners ought to have established exceptional circumstances to prove why they should be admitted on bail, they have dismally failed to do so,” she said. DPP argues that the release of Kamoli and company would prejudice the interest of justice. “I aver further that the release of petitioners would indeed prejudice the interest of justice as the nature of the offence or the circumstances under which the offences were committed is likely to induce a sense of shock or outrage in the community where the offences were committed. I aver further that a sense of peace and security among the members of the public will be undermined or jeopardize the confidence of the public in the criminal justice system hence I strongly militate against the release of the petitioners.”
According to Motinyane, evidence already presented against the complainants’ in their criminal trial shows there is a strong prima facie case against them hence their release can induce them to abscond. She adds that they are facing serious offences and that if convicted they face the maximum penalty of life imprisonment or death penalty. In motivating their bail application Kamoli and company said their trial is taking unreasonable time to conclude in violation of their right to be tried within a reasonable time, which is a requirement of section 12 of the Constitution.
The complainants also alleged in their papers that South African prosecutor Shaun Abrahams took their docket with him to South Africa when he resigned and is holding on to it until his fees have been paid hence further delays to for their trial but Motinyane denies the allegations and says she is in possession of the docket. They contend that the delay to finalize prosecution plus their continued detention justifies their release in terms of section 6 (5) of the Constitution.
The section speaks to Right to Personal Liberty and states that, “If any person arrested or detained upon suspicion of his having committed, or being about to commit, a criminal offence is not tried within a reasonable time then, without prejudice to any further proceedings that may be brought against him, he shall be released either unconditionally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial.”
While some of their bail applications were previously denied, they argue that they have presented changed circumstances and a new ground of unreasonable delay and protection of the law as enshrined in section 19 of the Constitution and therefore ought to be released. Section 19 speaks to equality before the law and equal protection of the law. It states that “Every person shall be entitled to equality before the law and to the equal protection of the law.”
They said they qualify for the release on bail on account of delay to prosecute and want to be admitted on free bail and are undertaking to abide by any conditions that will be set by the court.