Army murder accused claim evidence fabrication
MASERU – Retired army boss, Lieutenant General (Lt Gen) Tlali Kamoli, along with eight other soldiers charged in relation to Lt Gen Maaparankoe Mahao’s murder, has launched a blistering attack against Lead Prosecutor in the case, Advocate Shaun Abrahams.
Abrahams, along with fellow Prosecutor Advocate ’Naki Nku is accused of fabricating and manipulating evidence in an effort to ensure that the nine suspects are convicted and subsequently jailed. Kamoli and company make these allegations in a court application seeking to have Advocates Abrahams and Nku removed as prosecutors from their case.
“…This application is necessitated by the evidence of PW2 on 7 and 8 July, 2021, on which dates he effectively suggested the 1st to 3rd Respondents and police investigators fabricated evidence resulting in his different contradictory statements…” court papers state. The nine suspects say they fear that thy will be subjected to an unfair trial should the two lawyers continue to prosecute their case. Abrahams is 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 the death penalty should the accused persons be found guilty and went ahead to narrate that one Colonel Thato Phaila, Captains Sechele and Hashatsi took instructions from Kamoli and regularly reported progress about Mahao’s killing to him.
In making the said statement (opening statement), suspects argue that Abrahams exceeded statutory obligations set in the Criminal Procedure and Evidence Act (CP&E) and lied about what really transpired.
They make reference to Colonel Phaila’s evidence led in court on July 7 and 8 wherein he did not make mention of Kamoli or him authorizing an operation to either arrest Mahao on the day he was killed or arresting other alleged mutiny suspects.
Rather, Phaila told the court that the operation was authorized by the then Acting Commander, Major Generals Khoantle Motšomotšo and General Lineo Poopa.
Sergeant Lekhooa Moepi has deposed to an affidavit on behalf of the fellow accused and tells 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 Motšomotšo and Poopa.
Moepi says Phaila explained in his evidence that General Kamoli was on leave of absence in neighbouring South Africa when the operation to arrest mutiny suspects started yet the lead prosecutor said they were reporting to him. On Abrahams’ opening statement that Kamoli authorised an operation to arrest Mahao on June 25, 2015, Moepi says the statement contradicts that of witnesses in that Phaila made it clear that the operation to arrest Mahao and other mutiny suspects was authorised by the then acting Commander.
“He further suggested that instead of arresting the deceased, the applicants ambushed the vehicle driven by the deceased and shot the deceased with an automatic rifle. PW2’s and PW1’s evidence contradicts these assumptions and comments…” Moepi states. Also, during his opening remarks, Abrahams is said to have stated facts instead of indicating what evidence he intended calling to prove the facts.
Weighed against Phaila’s evidence, according to Moepi, this approach “leaves us in no doubt that the second and third respondents are conducting this trial with a view to ensuring that we are convicted at all costs.” He further states that the prosecution is not conducting the trial impartially, but is desirous that they be convicted notwithstanding lack of evidence suggesting commission of a criminal offence.
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 army only to later say there were different teams (arrest team, security team, surveillance team, interview team) when led by Advocate Abrahams.
Strange to his realisation was Colonel Phaila’s confession that Advocate Abrahams fabricated and distorted evidence. Moepi further says that “I will then refer to the actual evidence of PW2 (Phaila), which was made during and prior to re-examination with PW2 making it clear that he is not prepared to be asked questions by the second respondent (Abrahams) because he had been made by the very same second respondent to fabricate and distort evidence.”
Phaila is 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 states.
In the affidavit, Moepi also alleges that the prosecution influenced Phaila to testify to the changed statements against what he knows to have transpired and that Abrahams said he would influence government to pay his terminal benefits if he is to co-operate.
It is further stated that Phaila testified on July 7 that mutiny suspects who include Advocate Abrahams’ driver, are threatening him but the prosecution ignored the security concern only to attend to it later when one defence counsel raised it. According to the suspects, prosecution chose to ignore the Phaila’s complaints because he refused to give a false testimony.
“A reasonable conclusion to make in the circumstances is that the respondents chose to ignore PW2’s complaints that he is being threatened by the 2nd Respondent’s driver and other mutiny suspects, whom he talked about during his testimony, simply because PW2 refused to give a false testimony that he was advised to give by respondents and investigating officers.”
The circumstances have led them 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 a death penalty as he wished from the first day he made his opening address. “The applicants hold a strong view and perception that with every moment that passes by and the second and third respondents are prosecutors, they will continue to fabricate evidence to achieve their desired goal that we should be sentenced to death.
“They will hide evidence favourable to us. They will peddle evidence in the manner they did with the witness statements of PW2 to say things that PW2 never said to them.” They nine suspects also say they believe Captain Halahala’s evidence was also fabricated but he was not as brave as Phaila became.
Should the current prosecution continue with the case, they say they fear that evidence will continue to be fabricated therefore they want Abrahams removed. Abrahams was engaged by government to lead prosecution in 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.