Mahao murder case hits a snag, again

. . . suspects accuse prosecution of conducting trial by ambush

RELEBOHILE TSOAMOTSE

MASERU – The long-running trial for the sensational murder of army commander, Lieutenant General Maaparankoe Mahao, looks set for yet another setback after the Appeal Court of Lesotho failed to hear an appeal in which soldiers charged with his murder seek the recusal of the presiding judge. Zimbabwean Acting High Court of Lesotho judge, Justice Charles Hungwe, declined to recuse himself from the criminal trial in January this year, after the accused soldiers faulted him of prejudging their trial.

The accused said comments that he (Judge Hungwe) made in his judgment in a bail application where one of them had asked to be released on bail suggest he had already found them guilty and was, therefore, unlikely to change his mind in the criminal trial. When Justice Hungwe dismissed them, the soldiers took their fight to the highest court asking the court to order him to recuse himself from their trial. The trial had already started in the High Court with all the accused persons pleading not guilty to the charges before the request for the recusal of the judge.

Justice Hungwe dismissed their application for lack of merit and said the fact that he ruled against one of them in his bail petition did not mean he will also rule against them in the trial. “To suggest that a presiding officer will not move from his bail judgment is difficult to comprehend, even more difficult to comprehend is the submission that the court will gain prior knowledge of the facts which will bear issues at the trial. There is no substance in this submission,” the judge said in his ruling.

The judgment further stated: “I cannot imagine a fairer, a better and a mere transparent and accountable manner of handling such high profile matters as these than to invite external jurists, untainted by local conditions and environmental factors to preside over the trials as has happened in this case.”

The accused persons then applied for leave to appeal the judge’s decision not to recuse himself; the application for leave to appeal was also before Judge Hungwe. He (Justice Hungwe) dismissed their application (leave to appeal) but said in the interest of justice, he will put the trial in abeyance to allow complainants to challenge his decision in the Court of Appeal. This, the judge said, was to avoid a situation where the Apex Court may disagree with his decision (decision not to recuse himself) and thereby render the trial proceedings a nullity.

However, the Appeal Court failed to hear the trial in its May session because complainants had not prepared the court’s record to make the hearing possible. Their appeal was, as a result, not enrolled for the session. Correspondence between lawyers representing the prosecution and defense shows that the complainants failed to prepare the record on time for the case to be enrolled for hearing. The prosecution now says despite the appeal not having been heard, the criminal trial will go ahead on the set dates of hearing, and Advocate Christopher Lephuthing, who represents the Crown, informed defense lawyers in a letter dated March 18 that Justice Hungwe’s dismissal of the recusal application not only touched on his competence to preside over the trial but also affects the proceedings before him.

For that, Lephuthing said, it was necessary to determine the appeal, suggesting that complex questions of law exist in the appeal. He called on the appellants to prepare the record of proceedings so as to enable the prosecution to file their heads of argument. “…We expect to be served with the record of proceedings in order to allow us to file our heads of arguments on or before 30th March 2020 in support of every order granted at every stage of recusal and subsequent application for leave to appeal,” he stated.

The defense did not respond to the letter, prompting the prosecution to write another letter on May 12 in which Advocate Lephuthing noted that despite repeated calls on the complainants to prepare a record for the appeal to be enrolled for hearing, the defense failed to do so, resulting in their appeal not being enrolled for hearing.

“We confirm that today the 12th May 2020 was the roll call in the Court of Appeal. We regrettably note that the appeal of your clients had not been enrolled, primarily because there was no record of proceedings in respect of which the Court of Appeal was to enroll the matter for hearing in the April 2020 session. “There was no explanation offered to the crown as the inability of your client to file the record of proceedings since February 2020,” reads the letter in part. The letter further states that the criminal trial in the High Court was postponed after the undertaking by appellants to ensure that their appeal is heard in the April session of the Court of Appeal calling on the defense to declare their position on the appeal so that the crown can apply for the dismissal of the appeal if necessary.

“Now that it is only the crown which served and filed heads of arguments in the matter of appeal, must it be confirmed that your clients have effectively abandoned their appeal? “There is no direct proof that it is impossible to prosecute their appeal, hence we plead with you to declare their position to the fullest extent of allowing us to exercise available options which include filing a substantively comprehensive application for dismissal of that pending appeal on account of your client’s failure to prosecute it,” continues the letter.

Lephuthing said failure by defense to prepare the record of proceedings is contrary to Appeal Court rules and reminded them that the crown was eager to implement recommendations by the Southern African Development Community Commission of Inquiry probing Mahao’s death, adding that the prosecution has formed a view that the appeal is the interference with the administration of justice. Advocate Napo Mafaesa told Public Eye that their appeal was filed at a time when the court roll was already out, and “as a result our case was not enrolled.”

In the case, Sergeant Motsamai Fako, Corporal Motšoane Machai and Lance Corporal Tšitso Ramoholi are pushing for the recusal of Judge Hungwe, arguing the comments he made disqualified him from presiding over the trial. By referring to them as a gang, the soldiers say, Justice Hungwe has already made up his mind that they are guilty. Fako, who deposed to an affidavit on behalf of the accused, said in deciding his bail application Justice Hungwe did not restrict his reasoning to the facts before him concerning the bail application but went further to traverse merits that form the subject of the criminal trial they are facing which made him believe the judge cannot be impartial.

In an affidavit filed with their appeal application, Fako tells the court prosecution continues to conduct their trial by ambush. He says they were asked to plead to an indictment and only given the copies afterwards but were surprised that the judge became content with it. “We are not given the witness statements but the trial judge tolerates that and forces our trial to continue notwithstanding the fact that we do not have the benefit of crown case against us, while constitutionally we are supposed to have all evidence the crown intends to give,” Fako said.

He said it was constitutionally imperative that every accused person be afforded a fair hearing within a reasonable time by an independent and impartial court, adding that the constitution guarantees that accused persons shall be informed, as is reasonably practicable and in adequate detail, about the nature of the offence they are charged with.

Fako furthers states: “As the accused persons, we have the constitutional right to be a given adequate time and facilitates for the preparation of his defense. The conduct of trial judge, when ruling that the trial proceed notwithstanding our complaint that the crown did not serve us with statements or correct indictment filed, demonstrated partiality on the judge. The conduct of the judge made us to lose confidence in him to uphold our fair trial rights.”

Justice Hungwe’s decision not to recuse himself on the criminal trial faced by the applicants has been appealed on six grounds, that he erred and misdirected himself in not finding that the sentiments expressed in the bail judgment raise and constitute reasonable ground for the apprehension of bias; and also that the judge erred in concluding that he was not disqualified to hear the criminal trial following his comments in the judgment.

Further, the complainants said, “the learned judge erred by misconstruing the arguments presented before him on the aspect relating to the acquisition of prior knowledge of facts, the learned judge appears to have gained the impression that the argument was that he has prior knowledge of the facts through media, when the argument was that his prior knowledge of the facts emanates from the bail proceedings referred to in the judgment appealed against him.”

On top of that, Fako and company argue that Justice Hungwe failed to appreciate that the allegations of bias against him could come from any reasonable person in their position and any other ordinary member of the public and thereby called for his recusal.

 

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