Trial recusal: Sakoane goes down fighting

KUTLOANO MOFANA/Staff Reporter

MASERU – Chief Justice Sakoane Sakoane accepted the Appeal Court’s order to recuse himself from the long-drawn-out treason trial of former army commander Tlali Kamoli but had no kind words for judges in the Apex court. Sakoane CJ said in court on Tuesday this week that while he will honour the Court of Appeal’s decision, he is perplexed that the top most court had chosen to misdirect itself by giving an order that is clearly at variance with judicial administrative guidelines.

He was peeved by the Court of Appeal’s directive suggesting re-allocation of the case must be left as the responsibility of the Registrar which is against what the High Court Act dictates, which is that case allocation is the sole responsibility of the Chief Justice as the chief accounting officer of the judiciary. He said this was tantamount to the higher court ordering him to act against the law.

“. . . the Court of Appeal is saying I should abdicate my functions that are enshrined in Section 12 of the High Court Act. The court is usurping my functions and giving them to the registrar to distribute that case. Are you aware of the implications of that,” Justice Sakoane asked, addressing lawyers in the court, adding, “. . . You cannot delegate statutory functions by way of a court order. So, I am just going to excuse myself from allocating the case.”

Following the resignation of some foreign judges assigned high profile cases, Sakoane had decided to take charge of one of the cases involving the former army commander Kamoli, where he faces charges of treason, murder and attempted murder, together with a group of soldiers as well as Movement for Economic Change (MEC) leader Selibe Mochoboroane and Lesotho Congress for Democracy (LCD) leader Mothejoa Metsing, who has since skipped the country.

The Chief Justice has since his involvement in the case faced-off with the crown and numerous challenges, to which he had expressed impatience citing, among others, that the case had been dragging on in courts while the accused remained incarcerated. In her application for the recusal, which Sakoane CJ did not grant, the DPP Hlalefang Motinyane, felt the Chief Justice’s impatience was tantamount to what could be bias and unfair adjudication of the state case. The Court of Appeal granted the application of the Crown stating the Chief Justice may have applied the wrong law in his decision and felt he should stay down.

“I have carefully considered the complaints by the DPP in the light of the facts of this case. I have kept in mind that it is not a small matter for the DPP, in effect the Crown, to apply for the recusal of the CJ of the country from presiding over a case of such high-profile nature. “I have considered the predicament in which the DPP would be placed by the removal of the lead counsel in so important a trial and the prejudice that the Crown is likely to suffer,” stated Acting Justice of Appeal M.H. Chinhengo in a judgment delivered last week, in quorum with acting Justices Mtshiya and Van der Westhuizen.

The Court of Appeal further explained what it had considered “…in seeking to answer the question whether or not the DPP’s apprehension that the CJ will not bring an impartial mind to bear on the trial is reasonable. I have come to the conclusion that in all the circumstances of this case the CJ should have acceded to the request for his recusal.” However, the court declined to grant the relief for the appointment of a foreign judge saying any judge can be assigned the case. “It suffices that this court directs that the matter be placed before another judge. The decision whether that judge is foreign or local is left to the relevant authorities to make, as convenience and the interests of justice dictate,” the court stated.

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