MASERU – The conduct of Chief Justice Sakoane Sakoane in allocating several high profile cases initially reserved for engaged foreign judges has brought into question his judicial integrity, susceptibility to political pressure or other ethical lapses, the DPP has charged.
The judges, Charles Hungwe, Kabelo Lebotse and Onkemetse Tshosa were engaged following a Southern African Development Community (SADC) recommendation that politicians and security personnel implicated in a number of crimes believed to have contributed to the country’s instability be prosecuted using the best international standards.
Added to the recruitment of the three judges was former South African National Prosecuting Authority (NPA) boss, Shaun Abrahams, who is the lead prosecutor in all the high profile trials. One of the three judges, Justice Lebotse resigned over what he described as poor working conditions and was never replaced. Judge Tshosa became the second judge to resign after his countryman Lebotse – he reportedly left over what sources in the judiciary said was inadequate remuneration and poor working conditions.
The judges’ salaries are paid by the European Union (EU). But despite the four years’ detention of several of the suspects in the cases in question, the prosecuting authority has intimated that they may have to wait once more for recruitment of yet other foreign judge(s) to preside over the cases.
In latest developments, the Director of Public Prosecutions (DPP), Advocate Hlalefang Motinyane, has put under the spotlight Chief Justice Sakoane Sakoane’s decision to preside over one of the criminal trials in which six of the suspects stand accused of the August 2014 murder of police Sub-Inspector Mokheseng Ramahloko.
She says regard to the rationale and policy considerations may also not have been followed when local judges took over other high profile cases. Motinyane does not explicitly state what should happen to these cases, but says an executive decision that they be handled by foreign judges has not been changed and that Chief Justice Sakoane erred in allocating the treason trial to himself – while also allocating other cases to local judges.
Zimbabwean judge, Justice Hungwe, is the only remaining foreign judge after two of his colleagues resigned. Even so, his contract had already expired and was renewed for a few months. When Justice Tshosa resigned due to what the judiciary said were personal reasons, Justice Sakoane took over the treason trial and two other cases that Tshosa was seized with and were allocated to Justices Moroke Mokhesi and Polo Banyane.
Evidence is already being led before two other judges, but in an unexpected stance made public recently, the DPP said Sakoane might not have had regard to the underlying process, rationale and policy considerations followed in the appointment of foreign judges to adjudicate the high profile cases when he allocated the treason trial to himself.
Motinyane said this in the affidavit where she is pushing for removal of Justice Sakoane from the treason trial. She suggests that the Chief Justice ought to have consulted the executive and the JSC before allocating the cases to local judges. “Whether the executive had reviewed and/or reconsidered the approach taken under Section 118(3) of the constitution; and whether Sakoane had consulted the executive and the Judicial Service Commission hereon,” Motinyane continues in her affidavit.
The allocation of the criminal trials to local judges was never an issue until Motinyane accused Sakoane of bias in the treason trial. She, however, does not mention the two other cases before Justices Mokhesi and Banyane but contends that when a decision was taken to reallocate them to local judges, regard may have not been made on the rationale and policy consideration in the appointment of foreign judges.
Rationale and policy consideration
The SADC Commission of Inquiry into the circumstances surrounding the death of the former army boss, Lieutenant General Maaparankoe Mahao recommended that those implicated in his murder and other human rights violations be prosecuted using some of the best international standards.
And all suspects detained in relation to the murder, and other related high profile cases, are facing a litany of charges ranging from murder, attempted murder, theft, malicious damage to property and even treason.
A decision was then taken that foreign judges be appointed to prosecute these cases, resulting in the appointment of Justices Hungwe, Tshosa and Lebotse. Advocate Motinyane also secured services of one Advocate Abrahams, former South Africa’s National Prosecuting Authority (NPA) boss to lead prosecution in all the so called high profile cases.
The appointment of the judges was vehemently opposed by the suspects they were to prosecute. The suspects teamed up and petitioned the High Court (sitting as the Constitutional Court) to nullify the appointments. They argued that the JSC process of selecting the three judges was tainted by executive interference.
Tšeliso Mokhosi, the Lesotho Congress for Democracy (LCD)’s deputy leader who also happens to be former defence minister, deposed to an affidavit in the said application and argued that the government of the day played a key role in the appointment of the judges and sensationally claimed that the judges had been handpicked to impose the death penalty on the accused.
Mokhosi was implicated and was an accused in the sensational case of Police Constable Mokalekale Khetheng’s murder, but has since been discharged from the trial. His claims and those of his then co-accused were dismissed by the Constitutional Court and upheld by the Court of Appeal which ruled that the government acted constitutionally in their involvement in the appointment of the judges.
The Constitutional Court judgment said circumstances led to government playing an active role in the appointments, and that all government had to do was to approach similar jurisdictions to provide the judges while their curriculum vitae were submitted to the JSC – which was free to decide on which appointments to make and recommend to the King.
The court further held that by so doing, 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.”
Resignations of the two judges
For more than a year since the cases were put on the roll, little or no progress had been made in all the high profile cases. There were several interlocutory applications, mostly by the accused persons themselves. In most instances the interlocutory applications had a bearing on the main criminal trials and resulted in the courts having to wait for finalisation of the cases.
These cases sometimes would make it all the way to the Court Appeal. The Apex Court sits in seasonal sessions and the waiting was sometimes prolonged. Some of the interlocutory applications were recusals of the judges presiding, bail petitions, attempts to have the state funded legal fees for the accused adjusted and another where the accused sought a court order that the judges be impeached and disqualified from presiding further on their trials.
These applications were viewed as a ploy to frustrate the actual trials and are said to have forced the two judges to quitting. Justice Lebotse resigned in May 2020, while Justice Tshosa resigned in July last year.
Allocation of the cases to local judges
When Justice Lebotse resigned in 2020, the cases he was seized with were allocated to Justices Tshosa and Hungwe, but the resignation of Justice Tshosa saw judges Sakoane, Mokhesi and Banyane taking over the cases. While evidence is already being led before Justices Banyane and Mokhesi, Justice Sakoane finds himself having to deal with a number of interlocutory applications – the actual trial is yet to start.
Politicians Mothetjoa Metsing and Selibe Mochoboroane are part of the accused to be tried by Justice Sakoane, but the latter has asked that charges against him be quashed. This application is yet to be argued. The application to quash the indictment came after the pair previously failed to convince the court to nullify their joinder as accused persons in the trial. They joinder only came in later as the prosecution said it only became evident when at a later stage, witnesses were being interviewed that the two politicians also need to be charged. Instead, Justice Sakoane ordered that they formally appear before court on December 6 last year to face charges.
Mochoboroane complied with the order but Metsing has since evaded appearing in court and a warrant for his arrest has been issued. His whereabouts remain unknown. The Chief Prosecutor is, however, not happy with the Chief Justice’s conduct in the trial and now wants him removed from presiding further on the trial. She is of the view that Sakoane ought not to have allocated the case to himself and adds that government had not reconsidered its stance that high profile cases be adjudicated by foreign judges.
Motinyane argues that “the learned Honourable Chief Justice erred and misdirected himself in appointing himself as the trial judge in CRI/T/0001/2018. “More specifically, the learned judge failed to have regard to the underlying processes, rationale and policy considerations followed in the appointment of foreign Judges to adjudicate in the matter of the Respondents when he appointed himself to preside over the trial of the Respondents; the learned judge did not have regard to the fact that the executive had not reviewed nor reconsidered the approach taken under Section 118(3) of the Constitution.”
DPP’s complaints against Chief Justice
Apart from the fact that Advocate Motinyane believes that Chief Justice Sakoane ought not to have allocated the high profile cases to local judges, Motinyane accuses him of bias against the prosecution.
She cites that when the court held an inquiry sometime last month on the non-appearance of her lawyer on the date set for the trial, the court did not conduct an inquiry on the execution of the warrant of arrest it had issued against Accused 5 in the trial (Metsing).
Motinyane also says she is worried about the speed that the court wanted to proceed with the trial after issuing a warrant for the arrest of the 5th Respondent, without affording the police reasonable time to execute the warrant of arrest.
“The Court ought to have enquired into the failure by the police to execute the warrant for the arrest of the 5th Respondent, issued by the Court some 4 and a half weeks earlier.” According to the DPP, those are signs of bias and the judge should therefore recuse himself. It all began when Justice Sakoane barred Advocate Abrahams, for the prosecution, from appearing as a lead prosecutor in the treason trial.
Abrahams had not complied with a date of hearing sometime in January and the judge subsequently disqualified him from leading the prosecution after conducting an inquiry under the Speedy Courts Trial Act. Sakoane found that he was lied to on the reasons why Abrahams could not make it in court on the day – January 10.
This prompted Advocate Motinyane to seek Justice Sakoane’s recusal, who dismissed the application and ruled that the DPPs fears that he will be biased are unjustified. It is DPP’s contention that in fact, Chief Justice Sakoane double-booked Abrahams.
In that recusal application, Motinyane had also challenged Justice’s Sakoane’s decision to remove Advocate Abrahams as lead prosecutor but Sakoane ruled that “judicial officers have jurisdiction to discipline practicing lawyers including those from the employ of the crown by suspending, removal from the roll and disqualification from a case.” However, Advocate Motinyane wants Abrahams back as the prosecutor and has asked the appeal court to intervene. She has asked the Court of Appeal to review Sakoane’s decision.
Attempts to have Abrahams back on board
Two key questions are now up for review before the Court of Appeal, namely; whether Chief Justice Sakoane was correct to disqualify Abrahams as the lead prosecutor and; secondly, whether the judge’s decision to refuse to recuse himself is justified. The DDP contends that by disqualifying Abrahams, Justice Sakoane has interfered with the legal powers that are bestowed upon her by the law.
She says the judge has gone beyond the provisions of the Speedy Courts Act when imposing the sanction; “the learned judge erred and misdirected himself in holding that Advocate Abrahams was no longer the Lead Crown Counsel and that Advocate ’Naki Nku was the Lead Crown Counsel in conflict with the prerogative of the DPP, who is covered by Section 6(2) of the Criminal Procedure and Evidence Act to retain counsel to conduct criminal prosecutions instituted by her.”
Contrary to the judge’s finding that Advocate Nku is now a lead prosecutor, Motinyane says it is wrong that Nku was appointed lead prosecutor. “I, at no stage informed the court or anyone else for that matter that I had terminated the mandate of Advocate Abrahams and had appointed Advocate Nku as the lead prosecutor in this matter.” She says the court erroneously drew the incorrect inference that Advocate Nku was now leading the prosecution.
She further said: “The court failed to have regard to the fact that Mr Abrahams had been involved in the matter for two to three years and to find new Counsel over the festive season, within four weeks of the scheduled date of the commencement of the trial on a matter of such magnitude is an almost impossible task.”
Motinyane also contends that Justice Sakoane imposed an excessive sanction on Abrahams which, in her view, is disproportionate to the facts, the Crown, public interest and the interests of the administration of justice. She also argues that the sanction imposed is unlawful and conflicts with the provisions of the Speedy Court Trials Act. She is asking the Court of Appeal to review and overturn the sanction. The case will be argued on April 21.