MASERU – The leader of the Lesotho Congress for Democracy (LCD) Mothetjoa Metsing and Movement for Economic Change (MEC) leader Selibe Mochoboroane will likely have their treason trial separated from that of retired army boss, Lieutenant General Tlali Kamoli and three other soldiers co-accused.
Chief Justice Sakoane Sakoane on Wednesday this week advised counsels for the prosecution and defense to carefully study and apply their mind to the Criminal Procedure and Evidence Act (CP & E), particularly Sections 125, 140 and 170 of the Act, when it comes to joining the two political leaders to the case.
Section 125 speaks to joinder of counts, and Subsection (3) states that if the court thinks it is conducive to the ends of justice to do so, it may direct that the accused be tried separately upon any one or more of the counts.
Section 140 speaks to the effect of persons being implicated in the same offence and Subsection (2), thereof, states that a person who counsel or procures another to commit an offence or aids another person in committing an offence.
And further that after the commission of an offence harbors or assist the offender may be charged in the same charge with the principal offender and may be tried with him or separately or may be charged and tried separately whether the principal offender has or has not been convicted, or is not amenable to justice.
On the other hand, Section 170 is about separation of trials and states that “when two or more persons are charged jointly whether with the same offence or with different offences, the court may, at any time during the trial on the application of the prosecutor or any of the accused, direct that the trial of the accused or any of them be held separately from the trial of the other or others of them, and for that purpose may abstain from giving a judgement as to any of such accused.”
The sections all point to the court having the discretion to order separation of the trials. During the hearing, Justice Sakoane said he has noted that according to the indictment before court, not all charges apply to the accused persons; the effect of which could be the accused’s infringement of constitutional rights at the time of the trial, particularly the right to a fair trial.
Having different charges for each of the accused yet again they stem from the same indictment, he said translates to the fact that there will be days on which some of them have to appear before court even on days when they have no charge to answer.
“My prima facie view is that it is unfair for an accused to come to court when a trial has nothing to do with them; I want the crown to apply its mind to that,” Sakoane said. Their appearance, he maintained, will not be in line with the constitutional imperative of a fair trial. “In terms of this indictment, there are accused persons who on certain days will be present during trial, not as accused persons, but just visitors and that cannot be in line with the constitutional imperative of their right to a fair trial, they will be forced to brief counsel and incur costs as a result.”
The judge then reiterated his remarks that parties should apply their mind to Sections 125, 140 and 170 of the CP &E. Justice Sakoane took over the trial from Botswana Judge Onkemetse Tshosa who has since resigned. Tshosa is one of the three foreign judges who were recruited to prosecute high profile trials. The Chief Justice presided over the case for the first time on Wednesday this week and ordered parties to iron out all outstanding issues so a pretrial conference gets underway next Wednesday. He issued a stern warning to the parties saying he would not entertain any delays.
Judge Sakoane said the first step in a criminal trial is a pretrial conference but is shaken that it still has not happened 20 months later. In his probe, the top judge also established that the prosecution has not yet prepared the opening statement and summary of facts as well. “So since 2020, all the fundamentals of the trials have not been met? It is unfortunate that we have accused persons who are in prison for such a long time yet the crown is guilty for not bringing them to trial,” Judge Sakoane said.
The judge then directed parties to appear before him next Wednesday for a pretrial conference and ordered the crown to meet its obligations. However, Metsing and Mochoboroane maintain that their trials should be separated and the four soldiers and Justice Sakoane will hear their plea on Monday. Their co-accused are on record also requesting the court to separate their trials saying joining them causes further delay. The two politicians have unsuccessfully challenged Director of Public Prosecution (DPP), Advocate Hlalefang Motinyane’s decision to indict them along with the four soldiers already in detention.
Apart from claiming immunity as per Clause 10 of a Memorandum of Understanding (MOU) between government and opposition parties in 2018, the pair says it will prejudice them if they are to be joined with people who have already spent years in detention, they allege infringement on their constitutional right to trial within reasonable time and adequate time and facilities for preparation of their defence.
While Clause 10 was subsequently nullified by the High Court (sitting as the Constitutional Court) and upheld by the Apex Court, they launched another High Court application (civil application) wherein they alleged pretrial rights.
They argued that they cannot be tried in the High Court without first being remanded by the Magistrate Court as required by the CP&E Act and that prosecution sought to join them in a trial already in progress. Chief Justice Sakoane heard the application on November 25, 2020, and December 8, 2020, but declined jurisdiction on February 9. The judge ruled that the complaints raised by the duo will be best dealt by the trial judge and so ordered. His ruling was taken on appeal but the Apex Court struck it from the roll. The pair eventually came back before Judge Tshosa who resigned before determining the application. Judge Sakoane now remains seized with the criminal trial.