MASERU – When Botswana Judge Onkemetse Tshosa endorsed the indictment including political leaders Mothetjoa Metsing and Selibe Mochoboroane as accused persons on March 30, they had to join their co-accused in the dock. However, the court acceded to their request to pursue their constitutional challenge to their charge.
The duo was to be joined in a murder trial wherein retired army boss, Lieutenant General Tlali Kamoli and three other soldiers have been charged in relation to Sub-Inspector Mokheseng Ramahloko’s murder. The Crown amended the indictment on February 19 to include an additional treason charge. Upon indictment Metsing and Mochoboroane challenged their prosecution.
At the time, they asked Justice Tshosa to stay the criminal trial pending their two appeals. They had approached the Court of Appeal seeking rescission of the High Court (sitting as the Constitutional Court) judgment that Clause 10 of a 2018 Memorandum of Understanding (MOU) between the government of the time and opposition parties was unconstitutional.
In another application, the pair was appealing Chief Justice Sakoane Sakoane’s decision to decline jurisdiction in their application to have the Director of Public Prosecution, Advocate Hlalefang Motinyane’s (DPP) decision to join them on an ongoing trial reviewed and set aside.
Instead, judge Sakaone directed them to lay their complaints before a trial judge. They had also argued that they cannot be tried in the High Court without first appearing before the Magistrate Court.
The two applications failed, with the latter being struck off the Appeal Court’s roll, the net effect of which was to compel the pair to join their co-accused in the dock. Faced with the dilemma, they went before judge Tshosa again as had been ordered by the Chief Justice when he declined jurisdiction to review DPP’s decision to indict them.
Justice Tshosa had not decided on their application when he resigned a fortnight ago and all the criminal trials before him were allocated to local judges. Judge Sakoane became seized with the “treason trial” and now had to decide on the two politicians’ application to review Advocate Motinyane’s decision to join them in the ongoing trial.
However, their lawyer argued on Monday this week that his clients are not accused persons. Advocate Motiea Teele KC said the mere filing of an indictment in the court’s registry does not make his clients accused persons.
According to Advocate Teele, one does not become an accused because the DPP has so decided but “you become an accused if your indictment has been done in terms of the law.” He said while Section 119 of the CP & E states that the case shall be deemed pending after filing of the indictment with the court, it does not necessarily mean that its pending. “Deemed, does not imply that its pending, there is a difference,” Teele added.
He argued that the amended indictment in which his clients have been added is erroneously before court hence the decision to challenge it adding that “a person becomes an accused when the matter is properly filed and there is no objection or illegality that can be raised in relation to the filing of the charge.”
When Justice Sakoane implied that the indictment remains valid until being set aside by the court, Advocate Teele maintained that his clients aren’t accused persons. “How do I decide on people who are not accused persons? Do they have the locus standi (legal right to sue) in these? The procedural illegality you are claiming can only happen if you’re an accused,” Justice Sakoane said.
Advocate Shaun Abrahams represents the Crown in the matter, and said Metsing and Mochoboroane are challenging the DPP’s decision because they are accused persons. He cited Section 119 of the Criminal Procedure and Evidence Act (CP & E) saying charges are deemed to be pending once filed in the court.
“The applicants are accused persons in the matter, they are before you to review DDP’s decision to summarily indict them,” Abrahams argued. He explained that Section 5 of the CP & E, and 99 (2) of the constitution empower the DPP to institute proceedings against any person and that it is her or his discretion to choose a forum where the prosecution takes place.
Advocate Teele eventually conceded that his clients are accused and parties agreed that Justice Sakoane should go ahead to hear the two politicians’ application in merits. They maintain that their joinder in the ongoing trial will prejudice them and say they first have to appear before the Magistrate court. Their lawyer told the court that they are going to allege numerous infringement on their rights but fear that it will be interpreted as delaying the process.
For that they are seeking separation of trials from the four soldiers Motinyane has joined them with. Justice Sakoane will hear the case on Tuesday next week. The judge last week slammed the prosecution for failing to facilitate the start of the trial. He established that the opening statement and summary of facts had not yet been prepared 20 months after the case was first brought to court.
“So since 2020, all the fundamentals of the trials have not been met? It is unfortunate that we have accused person who are in prison for such a long time yet the crown is guilty for not bringing them to trial,” Sakoane said. He implored on the parties to carefully study and apply their mind to the CP & E. Particularly Sections 125, 140 and 170 for preparation of a pre-trial conference before the actual trial starts. Sections 125 and 140 cite joinder of counts while 170 speaks to separation of trials and the court having discretion to ordering any.