MASERU – Detained soldiers awaiting trial are being blocked from meeting with witnesses because of a Lesotho Defence Force (LDF) directive that serving army members should not visit them.
Their lawyers lament the directive compromises their work of preparing for trials involving the detained soldiers.
Advocate Letuka Molati, who represents detained retired army commander Lt General Tlali Kamoli, said the effect of the order by LDF is that his client and other detained soldiers are unable to prepare for the trials since some of those serving members are witnesses in their cases.
“The soldiers in detention are being obstructed from meeting with their clients which hampers preparation on their part for the cases that they have to answer…”
Molati told Public Eye in an interview that suspects may not receive fair trial if they are unable to consult witnesses while witnesses on their part are unwilling to talk to lawyers unless they have verified from accused persons that they can divulge certain information.
“Everybody suspected to have committed a crime has an inalienable right to consult witnesses,” he added.
Another lawyer, Advocate Napo Mafaesa, representing Mots’oane Machai, Kamoli’s co-accused in the murder of former army commander Maaparankoe Mahao said he is also aware of an order by the LDF command directly or indirectly preventing serving members from meeting the detained soldiers.
He echoed Molati’s sentiments and explained that the LDF’s order means detained soldiers are unable to meet their witnesses adding that it also causes inconveniences on the part of soldiers who always have to report to the LDF before visiting detained soldiers.
“Even relatives to the accused soldiers cannot go there without reporting because of the LDF’s order; the fact that they first have to seek permission causes inconveniences because some of the witnesses seek permission and are not answered, as a result this affects us lawyers in preparation for the trials.”
LDF Public Relations Officer, Lieutenant Colonel Mashili Mashili, however refuted the allegations saying there is no order that serving members of LDF should not be allowed to visit detained soldiers. Mashili said LDF has no right to prevent anyone, including soldiers, from visiting the detained soldiers.
Mashili said the detained soldiers are only suspects and that even if they had been sentenced, there would still be no basis to block visitors.
He explained LDF’s only function at the correctional service (prisons) is safety or providing security of their personnel there.
“Our only obligation is security over those personnel; it means we don’t have jurisdiction over the issue of people who should go and not go there. However, serving soldiers always have to tell their immediate supervisors where they’re going,” Mashili said.
“It is impossible to have such an order for the mere fact that we have relatives all over; having such an order would mean we are preventing family members from meeting with their own blood relatives.
“I think their issue is with the fact that members have to report their moves yet the norm within LDF as an institution is that all officers have to report to their supervisors explaining where they are heading to once they leave work,” he added.
In the criminal case involving the murder of Mahao, the office of the Director of Public Prosecutions (DPP) has informed lawyers involved in the cases that witness statements would be made available to the lawyers on July 28 and are expected to have prepared for the trials on August 5.
Advocate Mafaesa said the time given is unreasonable considering the fact that there will more than 50 statements that they have to study carefully and understand.
“It is not fair; it’s not like we are only focusing on these cases alone,” he said.
Their clients (detained soldiers) have been in remand prison for close to two years now as government looked for foreign judges to try them. Their cases were considered as high-profile cases and foreign judges are hired to preside over them so as to remove perceptions of bias from local judges.
The criminal trials then had to be postponed a number of times while arrangements were made to eventually have the foreign judges available.
In February this year, former defence minister Tseliso Mokhosi, along with 15 others, instituted a constitutional challenge against the appointment of foreign judges to try their cases.
They alleged in their court papers that foreign judges are hired to secure the harshest sentences, including the dreaded death penalty.
In the affidavit filed on behalf of all other applicants, Mokhosi said they decided to challenge the appointment of the judges owing to their right to a fair trial before an independent and impartial court.
He argued that “the participation of the attorney general, the legal advisor of the executive and Director of Prosecutions (DDP), the prosecuting authority in our trials gives me an impression that certain judges are picked to achieve certain desired criminal outcomes.”
However, the Constitutional Court ruled on May 2 that government acted constitutionally in initiating the recruitment of the said judges and that in doing so, it was providing its assistance to the courts so as to enable them to protect their “independence, dignity and effectiveness.”
“When government approached its development partners and its Southern African Development Community (Sadc) counterparts regarding funding of the prosecution of their criminal trials, it was acting constitutionally in terms of section 118 (3) of the constitution…”
While the constitutional court approved the appointment of the judges that would ensure that the trials are being dealt with, Mokhosi and company appealed against the High Court judgment and again argued that the executive was actively involved in the appointment of foreign judges.
The detainees told the Appeal Court through their lawyer, Advocate Karabo Mohau KC, on Wednesday this week that they are opposed to Zimbabwean Justice Charles Hungwe r any other foreign judges to be hired to try them because the process was flawed.
Justice Hungwe is the only judge engaged so far after being sworn in as the Acting High Court judge.
Mohau said the Attorney General’s explanation on the recruitment of the judges implies that the executive took it upon itself to go about looking for judges while they knew that it was the mandate of the Judicial Service Commission to do so.
Agreements that countries enter into are not law, he argued.
As a result of the Sadc decision, they witnessed a peculiar instance where the executive initiated efforts to recruit foreign judges, which was unconstitutional.
He told the Appeal Court bench comprising five judges that if government felt it was bound by Sadc decisions on Lesotho then this had to be done according to Lesotho’s Constitution.
He reminded the court that Prime Minister Thabane in an affidavit, although in a different litigation, admitted government-initiated efforts for the appointment of the judges but conceded this was improper. (Where is the affidavit? Which case is it).
Advocate Mohau said the complainants are not against the appointment of the foreign judges but are concerned about the manner in which they were appointed therefore the appointment should be nullified on the basis of the flawed process.
“The process leading to the appointment of the judges was erroneous and should nullify the appointment of the judges, the fact that the Judicial Service Commission agreed to go ahead with the flawed process does not make it any good.”
Advocate Tekane Maqakacahne who represents government in the matter said the executive involvement in the matter was only limited to negotiations with international partners while other functions were left to the relevant authorities.
He said all government had to do was a Constitutional obligation to ensure the effectiveness of the judiciary.
Maqakachane further pointed out that the role of the executive was to trigger the recruitment process as it involves many factors such as securing the funding and engaging diplomatic negotiations with SADC and its member state.
Judgment has been reserved for August 2 2019.