. . . only Justice Hungwe left among the three foreign judges
MASERU – The controversy surrounding high profile murder cases involving members of the Lesotho Defence Force (LDF) deepened this week after a foreign judge hired to prosecute their criminal trials resigned. Botswana Justice Onkemetse Tshosa has been in his home country for weeks now, causing several postponements of the criminal trials he was presiding over until the judiciary this week confirmed his resignation.
“I can confirm that Judge Tshosa has indeed resigned,” High Court and Appeal Court Registrar, Advocate ’Mathato Sekoai said in an interview with Public Eye. Sekoai could not be drawn to reveal any other facts surrounding the resignation but only said other High Court Judges will take it from where Judge Tshosa left. “The trials Judge Tshosa had been presiding over will be taken over by other High Court judges. I will need to check how they have been allocated but I can recall that the Chief Justice will be presiding over one of them,” Sekoai said.
Asked about a decision taken at the beginning of the trials that they can only be heard by foreign judges so as to remove perceptions of bias, Sekoai said: “I am not able to justify other decisions but I can only give you facts that the judge has resigned and that the cases will be enrolled before other High Court judges.”
Tshosa’s resignation follows that of Judge Kabelo Lebotse who also resigned last year due to what he said were poor working conditions. Their resignation now leaves Justice Hungwe as the only foreign judge on the High Court bench and the only judge engaged to specifically deal with high profile trials.
Judicial Service Commission (JSC) had in 2019 recruited the three judges after government resolved that the trials are sensitive and that because of the political climate in Lesotho, the trials will best be adjudicated by foreign judges.
The government’s decision to hire non-Basotho judges came on the backdrop of the South African Development Community (SADC)’s recommendation that those implicated in wrongdoing be prosecuted using the best international standards.
The JSC decision to agree to the engagement of the foreign judges was criticised by suspects who are now being tried by the same judge(s) who claimed the government initiated the process against provisions of the law. They teamed up and launched a constitutional challenge but were dismissed by the High Court (sitting as the Constitutional Court) and the Court of Appeal.
The two courts ruled that government acted constitutionally in its involvement in the appointment of the judges. They both ruled that the Executive was fulfilling its mandate under Section 118 (3) of the Constitution to provide assistance to the courts to enable them to protect their “independence, dignity and effectiveness.”
European Union (UN) pledged over M15 million towards engagement of five foreign judges but only three were appointed in the end. Former South African National Prosecution Authority head, Advocate Shaun Abrahams was also hired to lead prosecution in the cases but little progress has been made on the cases.
The cases have always been mired in controversy and countless interlocutory applications resulting in their dragging. Apart from the appointment challenge, the judges had been subjected to recusal applications which ended in the Apex Court and a constitutional challenge to cause for the impeachment of the judges as well as other pretrial matters such as the prosecution’s refusal to release some statements.
Recently, Abrahams was implicated in the fabrication of evidence in one of the cases but the court dismissed the allegations and ruled that he should continue as a prosecutor. Only one of the trials was heard almost to finality but could not be completed after Judge Lebotse quit. It was the case involving retired army boss, Lieutenant General Tlali and his three former body guards who were charged in relation one to Lisebo Tang murder.
They were charged with murder, attempted murder, malicious damage to property as well as defeating the ends of justice. The judge could also have finalised the case earlier but the prosecution in December said it was unable to bring the last two of its witnesses from China and South Africa respectively, citing finances.
The judge eventually resigned without completing the matter. It is now impossible to stick to the commitment that only foreign judges should preside over this criminal trials as Justice Hungwe now remains the only foreign judge on the High Court bench. While he remains seized with some of the matters, his employment contract comes to an end in October.
In fact, the foreign judges’ contracts expired sometime in February this year but EU as the funder, agreed to an extension request by the government and the contracts are now running until end of October.
In a previous interview with Public Eye, Head of European Union Delegation to Lesotho, Christian Manahl said the contracts cannot be extended beyond the current deadline. “The contracts have already been extended, they had reached the 18 months limit we have under this specific arrangement, they cannot be extended; unfortunately, this is what the regulations say,” Manahl said.
Some of the High Profile Cases Judge Tshosa was presiding on include treason charges against Lieutenant Kamoli and three other soldiers. Kamoli is to be joined by Lesotho Congress for Democracy (LCD) and Movement for Economic Change (MEC) leaders Mothetjoa Metsing and Selibe Mochoboroane who are challenging their indictment.
They are yet to be formally charged as they have alleged pretrial rights and the court High Court is yet to hear them. Other several attempts by the two leaders to avoid their indictment were dismissed by the Constitutional Court and Appeal Court.
They had cited Clause 10 of the 2018 Memorandum of Understanding (MOU) between government and opposition wherein it was said no leader can be prosecuted during the ongoing National Reforms but the Apex Court nullified the MOU.