23 April 2018

Lesotho: Lawyers Threaten Lawsuit On Foreign Judges

The lawyers representing the murder-accused former army commander, Lieutenant General Tlali Kamoli and other soldiers on Tuesday threatened to file a constitutional application to oppose the recruitment of foreign judges to try the cases involving members of the country's security agencies.

They said the impending recruitment of foreign judges which was communicated to them by Chief Justice, Nthomeng Majara, on Tuesday morning amounted to an interference on the independence of the judiciary.

The lawyers namely, Advocate Motiea Teele, Zwelakhe Mda, Karabo Mohau and Advocate Letuka Molati raised their objections during Lt-Gen Kamoli's court appearance before High Court acting judge, Justice Keketso Moahloli, on Tuesday.

Lt-Gen Kamoli faces a charge of murdering Police Sub-Inspector, Mokheseng Ramahloko, at Police Headquarters during an attempted coup by the army on 30 August 2014.

He is charged alongside Captain Litekanyo Nyakane, Lance Corporal Motloheloa Ntsane and Lance Corporal Leutsoa Motsieloa.

Lt-Gen Kamoli faces an additional 14 counts of attempted murder in connection with the 27 January 2014 simultaneous bombings of the Moshoeshoe II homes of First Lady Maesaiah Thabane and the Ha Abia residence of former police commissioner, Khothatso Tšooana.

He is charged alongside Major Pitso Ramoepane, Captain Litekanyo Nyakane, Sergeant Heqoa Malefane and Corporal Mohlalefi Seitlheko.

The murder and attempted murder cases were held simultaneously in the High Court on Tuesday and it was then that Adv Teele registered the lawyers' objection to the involvement of foreign judges in their clients' cases.

In his address to the High Court on behalf of the defence lawyers, Adv Teele, said the recruitment of foreign judges was an executive decision which undermined the independence of the local judiciary.

Adv Teele also said it was unnecessary to bring in the foreign judges because the local judges were competent enough to try all the cases.

The court proceedings followed a Tuesday morning meeting that the defence lawyers held a meeting with Chief Justice, Nthomeng Majara, and the prosecution.

"It has been officially communicated to us this (Tuesday) morning that foreign judges will hear matters involving soldiers before the court, including the present matters," Adv Teele said.

"The unanimous view of all counsel appearing in these matters is that we will not accept the involvement of foreign judges to hear these matters. Our local judges are competent and able to deal with these matters.

"It has come to our attention that the involvement of foreign judges was at the initiative of the executive. It has now come to the public knowledge that this initiative was not done in consultation with the chief justice," Advocate Teele submitted.

He added: "The properly constitutional way is by the advice of the chief justice and this must be done as a way to reduce the backlog of cases in this court. But in this case it is the government that says it is going to give the chief justice judges that will be sourced elsewhere.

"The chief justice was prepared to work together with the government to facilitate sourcing of these judges, but we have made it plain during our meeting with her that it is not how the constitution dictates.

"The correct position is that the chief justice should advise the government and the government should assist with funds. The business of this court is the responsibility of the chief justice.

"The question of allocation of cases is one of the integral parts of the judicial independence."

Justice Moahloli postponed the hearing of the murder and attempted murder cases to 2 May this year "to enable the head of the judiciary (Justice Majara) to give directives as to the further handling of these cases in view of the representations made on behalf of the accused persons".

Justice Moahloli also ordered the prosecution to furnish the defence lawyers with the crown witnesses' statements on or before 24 April 2018.

Adv Teele said while they had agreed with the prosecution for the cases to be postponed to next month, they had only done so out of consideration for the administrative issues in the judiciary and not for the executive to allocate the cases to foreign judges.

He said if need be they would file a constitutional application to stop the allocation of the cases to foreign judges.

"Our clients are in prison and want their cases heard but now judges are being sourced from nobody knows where except the government. It is clear that these cases will not proceed.

"We have taken instructions from the accused persons that these cases must proceed as soon as possible before the local judges and if it happens that foreign judges are brought in we will file a constitutional motion," Adv Teele said.

However, the Minister of Justice and Correctional Services Mokhele Moletsane refuted claims that the government was responsible for the recruitment of foreign judges.

He said this was an initiative of the judiciary on the advice of the Southern African Development Community (SADC).

Mr Mokhele said the regional body advised the government to consider bringing foreign judges to deal with Lt-Gen Kamoli's and other cases because of polarisation within the judiciary.

"When I took over as justice minister, I spoke to several judges, lawyers and even the Chief Justice Majara to find out what was going on because of public perceptions that cases were not fairly judged. I found out that within the judiciary, judges no longer trusted each other because of polarisation. The mistrust among the judges doesn't come from SADC or government, it comes from the judiciary itself."

He said the government only acted within its mandate to support the judiciary by approaching the European Union for financial support towards the recruitment of foreign judges.

"However, the recruitment of the judges will be done by the Judicial Service Commission (JSC). It must be clear that the JSC is headed by Justice Majara not the government.

"The foreign judges are not only coming to deal with Kamoli and his co-accused, there is a backlog of about 4000 normal and high profile cases which they will assist the courts of Lesotho to deal with,"Mr Moletsane said.

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