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Justice Hungwe entangled in messy Lesotho ‘sham trial’

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LESOTHO-SEVERAL high-profile trials of Lesotho politicians, serving and former members of the country’s security agencies are in limbo as lawyers representing murder and treason-accused former army commander Lieutenant-General Tlali Kamoli and other members of the security agencies resist trials by foreign judges, including Zimbabwe’s Justice Charles Hungwe.

MICHAEL ZIKHALI
The lawyers say the “charades characterised as trials of our clients” should be stopped for several reasons including allegations that their clients have been detained for too long under “sub-human conditions” and “denied their basic rights”.
Justice Hungwe is one of three judges, who were recruited last year by the Lesotho government with the help of Sadc governments to try the high-profile cases, which stem from chronic instability in the tiny southern African nation over the past decade.
In that period, Lesotho has seen human rights violations perpetrated by members of the security agencies, especially the army during the tenure of former commander Lt-Gen Kamoli who was eventually forced to retire on 1 December 2016. The United States had threatened to cut off crucial development assistance if Lt-Gen Kamoli did not leave his post to facilitate investigations into the alleged abuses.
But Lt-Gen Kamoli and others’ trials are now in jeopardy after his and fellow accused soldiers’ lawyers withdrew their services and also slapped Chief Justice Sakoane Sakoane with a letter demanding that he first address the alleged inhuman treatment of their detained clients by the prison authorities.
The lawyers who have withdrawn their services are attorney Qhalehang Letsika and advocates Zwelakhe Mda, Karabo Mohau, Letuka Molati, Kao Theoha, Silas Ratau, Mkhantji Kao, Napo Mafaesa, Lintle Tuke and another only identified in their letter as Letuka.
The lawyers accuse Sadc leaders of being complicit in the alleged denial of their clients’ rights to a fair trial. They warn that through their complicity, Sadc leaders are actually sowing seeds of future instability in Lesotho instead of dealing with the problem.
The lawyers accuse the European Union (EU) of financing and abetting the “charade characterised as trials of our clients”.
They also want Zimbabwe and Botswana, who have provided judges for the high-profile trials, to withdraw them. Zimbabwe provided Justice Hungwe while Botswana seconded Justices Tshosa and Kabelo Lebotse. The judges’ allowances are paid from a fund sourced from the EU.
Justice Lebotse resigned earlier this year, citing poor working conditions. His resignation left justices Hungwe and Tshosa with the huge task of presiding over the high-profile trials by themselves. The lawyers’ demands are contained in the letter of demand to Justice Sakoane dated 18 November 2020.
The letter is also addressed to local judges and the Attorney-General Haae Phoofolo. It is copied to Prime Minister Moeketsi Majoro, Speaker of Parliament Sephiri Motanyane, Law and Justice minister Nqosa Mahao, leader of opposition Monyane Moleleki, director of Public Prosecutions Hlalefang Motinyane and foreign missions in Lesotho.
Others who have also been copied are the Law Society of Lesotho, International Bar Association, Amnesty International, Southern African Development Community Lawyers’ Association, Commonwealth Lawyers’ Association and the media.
Lt-Gen Kamoli and some of his co-accused have been in remand prison since their arrest in October 2017 in connection with various crimes.
These include treason against the government of former Prime Minister Thomas Thabane in August 2014. In this case, Lt-Gen Kamoli and others are charged alongside former deputy prime minister Mothetjoa Metsing and current Development Planning minister Selibe Mochoboroane.
Lt-Gen Kamoli and others are also charged with the June 2015 murder of another former army commander, Lt-Gen Maaparankoe Mahao. In 2018, the government approached Sadc members states and secured foreign judges to try these and other high-profile trials.
At the time, then Justice and Correctional services minister Mokhele Moletsane said while the local judges were competent enough to try the cases, the government and Sadc still felt it necessary to engage foreign judges because the cases in question were politically sensitive. He further said that the rulings of the foreign judges were less likely to be viewed as biased.
The trials have failed to take off due to numerous lawsuits filed by Lt-Gen Kamoli and his co-accused. In one instance, they unsuccessfully sought the recusal of Justice Hungwe, alleging that they were unlikely to get a fair trial as he had already prejudged them by labelling them “killers of Lt-Gen Mahao”.
This particular case was thrown out, but this has not stopped them from filing other constitutional applications to stop the state from trying them. Now the trials face another hurdle, this time from Lt-Gen Kamoli and his co-accused’s lawyers, who have withdrawn their services and petitioned Justice Sakoane, government, Sadc and the foreign judges to stop what they call the charade of trials meant to produce a determined outcome against their clients.
In their 18 November letter, the lawyers repeat allegations previously made by Lt-Gen Kamoli and others of inhumane treatment and poor conditions at the Maseru Central Correctional Institution.
They want Justice Sakoane to urgently address their concerns about the alleged denial of their clients’ rights to adequate food, adequate time to consult their lawyers and time and documents to enable them to adequately prepare for their trials.
They argue that in some of the cases the state has either refused or ignored their requests to supply their clients with specific documents they need to prepare their defence. They also accuse the presiding judges of failing to address their concerns.
They now want Justice Sakoane to ensure that all their concerns are addressed. In the meantime, the lawyers say that they are withdrawing their services to their clients and they will not be part of “this grotesque travesty of justice”.
They said they had been forced into the drastic decision to “expose the state of the incarceration of the so-called high-profile accused”.
“Our clients have for a long time been subjected to sub-human conditions of incarceration and denial of the following basic rights: adequate food and or food fit for human consumption; adequate time to consult with their lawyers and prepare adequately for their capital offence charges,” the lawyers state in their letter.
“In some cases, the crown has refused or ignored requests to supply the accused with specified documents essential for the defence cases. We are sadly constrained to observe that the presiding judges incline to dealing with the accused’s concerns in the most nonchalant and cavalier manner unprecedented in this jurisdiction.”
The lawyers say they want to place it on record for future generations to know that although Lesotho is a signatory to several international instruments on the protection of various rights, including those of detained persons, it has singled out their clients for persecution.
“We want to straighten the record as to the circumstances under which our clients are held and tried. Contrary to uninformed, speculative and/or deliberately misleading statements regarding the conditions under which they are held; we appeal to the countries that have contributed personnel to participate in the charade characterised as trials of our clients to immediately withdraw their citizens who are giving a helping hand to the denial of our clients’ fundamental rights,” the lawyers said.
The lawyers warn that the “unfairness” of the judicial processes is a potential source of future instability in the country.  
“We also want to put it on record that these charades of trials will not only go down in the history of Lesotho as the worst denial of justice aided and abetted by member states of Sadc and financed by the European community, they are certainly also an incubation for further instability and absence of peace in Lesotho going forward.
“Unless the sources of our complaints are addressed, we will not take part and thereby give a semblance of propriety to proceedings that are otherwise completely lacking in any semblance of impartiality or intention to do justice in a manner that ensures that our clients’ rights are respected. As matters stand, it is clear that we are just going through motions towards a predetermined fate for our clients. We refuse to be made party to such a gross miscarriage of justice.”
Although Lt-Gen Kamoli and his co-accused have delayed their trials by filing numerous court applications, the lawyers shift the blame to the state, saying their clients have been languishing in jail for more than three years without being tried for reasons that can only be blamed on the prosecution.
“The prosecution has, as late as June 2020, been frantically interviewing persons it seeks to make witnesses in these cases. It has been giving witnesses piecemeal statements while pretending that it has all along been ready to proceed with these trials. How could it be ready when it is only now doing what should have been done three years ago? How could the cases be ready to proceed when the discovery of police dockets is only taking place now in 2020?  In some instances, our clients have had to go to court to seek discovery of police dockets in vain. In some instances, things that could have been discovered three years ago are only being discovered in September 2020.
“…We also want to express our shock at the deafening silence of Sadc under whose watch and with whose complicity our clients are suffering the denial of their rights. Sadc leaders should do some serious soul searching and ask themselves whether charade trials in Lesotho are a foundation for peace or they are sowing seeds of instability going forward,” the lawyers state.

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