Unavailability of Phumaphi record will not stop hearing
MASERU – Acting High Court judge, Charles Hungwe, has ruled that the unavailability of a record of proceedings before the Southern African Development Community (SADC) Commission of Inquiry into Maaparankoe Mahao’s death will not stop the trial from proceedings.
This after some of the accused persons in the case requested the record of proceedings from the prosecution saying they wish to use it as part of their defense. Attempts to have the record were all futile as they remain unavailable to date.
Foreign Affairs and International Relations Chief Accounting Officer, Lieutenant Colonel Tanki Mothae, was even summoned to appear before court to explain the possibility of having the record. Mothae told the court on Monday this week that SADC Facilitation Team to Lesotho is of the view that the records should only be released after the ongoing National Reforms Process.
He read a letter authored by Justice Dikgang Moseneke who said the Facilitation Team is of the view that the records be released upon conclusion of the reforms.
“I have brought the matter to the attention of the facilitator, we have no objection to the release of the record but it is our considered view that such record be released after the conclusion of reforms,” reads Moseneke’s the letter in part.
However, Judge Hungwe ruled on Tuesday that the prosecution is not bound to furnish defence with evidence that is not in its possession. He said the attempts to by the crown to have the record availed was on goodwill.
He accordingly set trial date to May 27. The SADC Commission of Inquiry, popularly known as the Phumaphi Comission, had been invited by government to investigate circumstances surrounding former army commander Lieutenant General (Lt Gen) Maaparankoe Mahao murder.
It was chaired by a Botswana judge, Justice Mphaphi Phumaphi who recommended that those implicated in Mahao’s murder be prosecuted using the best international standards.
Ten Lesotho Defence Force (LDF) members including Retired army commander, Lt General Tlali Kamoli, were eventually charged in relation to the murder and have since been detained. Their bail pretentions have also been denied on several times resulting in them spending almost four years in detention.
The other soldiers are Captains Litekanyo Nyakane, Haleo Makara, Sergeants Lekhooa Moepi, Motsamai Fako and Corporals: Morasi ‘Moleli, Motšoane Machai, Mohlalefi Seitlheko and Tšitso Ramoholi.
In February last year, the soldiers pleaded not guilty to the charges but no progress has been made on their trial since then. Three of the suspects accused the judge of prejudging the trial and asked for his recusal. Fako, Machai and Ramoholi teamed up to petition the High Court to order recusal of Judge Hungwe on their criminal trial.
The application was brought before justice Hungwe who dismissed it for lack of merit. They argued that he had prejudged their trial and that it was unlikely that he would change his mind going forward. They took offence with a comment the judge had made in a judgement wherein one of them asked to be released on bail.
“Therefore, if the court believes the version set out in the earlier petition which was later withdrawn, it will be clear that by his own admission he was part of the gang or unit of military officers who took down the deceased,” read the judgment in part.
By referring to them as a gang, the soldiers argued that Judge Hungwe has already made his mind that they are guilty and thereby sought his recusal.
They took the matter to the Appeal Court which also dismissed it. In their latest application before the High Court (sitting as the Constitutional Court) the soldiers have asked the court to disqualify the two foreign judges appointed to specifically prosecute their cases.
They have outlined a litany of complaints against the judges and argue that the judges’ conduct during the criminal trials disqualifies them from further presiding on the cases.