THE trial of four soldiers accused of the attempted murder of former Lesotho Times and Sunday Express editor, Lloyd Mutungamiri, will proceed from 10 July 2023.
According to the lead prosecutor, Rethabile Setlojoane, the Maseru Magistrates' Court has set aside 10, 11 and 19 July 2023 as the dates when the trial will proceed.
The trial had been held in abeyance since July last year when the four accused soldiers argued that the Crown acted irregularly in turning their former co-accused, Mahanyane Phasumane, into an accomplice witness.
Phasumane was from 30 November 2017 accused alongside Rapele Mphaki, Khutlang Mochesane, Nyatso Tšoeunyane and Maribe Nathane. This until 3 September 2019 when the Crown decided to turn him into its witness. He was then freed from Maseru Central Correctional Institution where he had been incarcerated with the other four who remain in custody.
Their argument was that Phasumane partook in their consultations with their lawyers while he was still one of the accused and therefore knows their defence strategy.
They also contended that it was wrong for the state to have approached and decided to make Phasumane an accomplice witness without notifying their lawyers beforehand.
The four lodged this interlocutory application before the presiding magistrate, Peter Murenzi, in July last year when Phasumane was supposed to testify. Advocate Setlojoane, had called Phasumane to take the stand as the second state witness after Mr Mutungamiri, had testified.
The accused's lawyers objected to him taking the stand saying he could not testify against them and therefore wanted the case to be referred to the Constitutional Court to determine whether Phasumane could testify and whether that does not warrant for the charges against them to be dissolved on that issue alone.
The accused's lawyers are Advocates Letuka Molate, Kabelo Letuka and Karabo Mohau (King's Counsel).
The lawyers wanted the Maseru Magistrates' Court to refer the trial of four soldiers to the Constitutional Court to quash the charges.
However, Magistrate Murenzi threw out their referral application on 22 February 2023.
Magistrate Murenzi stated that there was no tangible evidence that the accused were consulted together and that the DPP was empowered to charge anyone she wished to.
"The DPP has prerogative powers under section 99 of the Constitution to charge anybody, except the King, and also has powers to withdraw charges at any stage of the case," Magistrate Murenzi said.
"In terms of section 236 of the Criminal Procedure and Evidence Act (CP&E), she had powers to turn any suspect into a Crown witness. Although it has procedures, it (section 236) does not indicate whether anybody has to be consulted hence the Crown argued that no law prohibits the DPP from turning accused into witnesses.
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"An accomplice testifies on principle of indemnity and we also have a right again to put you back into the dock and charge you. He (Phasumane) said he volunteered to be a witness and denies that they were consulted together. He says he was consulted alone because he knew from the beginning that he was going to be an accomplice witness. Adv Letuka's mandate ceased when charges were dropped against him (Phasumane). There is no evidence that they were consulted together.
"I decline to refer the matter to the Constitutional Court. I find it in favour of the Crown," Magistrate Murenzi ruled.
Mr Mutungamiri was the first Crown witness to testify from 9 to 11 March 2022. He had been flown into the country from his home, Zimbabwe. During that time in Lesotho, he was placed under heavy security as he still feared for his life.
Phasumane will take the stand on 10 July 2023.
