Blow for detained soldiers

Staff Reporter

MASERU

THE Court of Appeal has rejected a charge by defence lawyers that Defence Minister Tšeliso Mokhosi’sdecision to convene a court martial against 23 soldiers accused of mutiny was unlawful and irrational.

Lawyers representing the 23 soldiers, Advocates AM de Vos SC, Koili Ndebele and Christopher Lephuthing, instructed by Attorney Tumisang Mosotho, wanted the Lesotho Defence Force (LDF) to be interdicted from prosecuting the soldiers pending the outcome of SADC Commission of Inquiry.

In dismissing the appeal last Friday, the Acting President of the Court of Appeal Justice Ian Farlam said he did “not agree with the contention that (Mokhosi’s) decision was unlawful and irrational”.

Justice Farlam said in his affidavit Mokhosi stated that when he made the convening order “he had reports, evidence and other materials which in his view compelled him to exercise his statutory powers to establish a court martial”.

“The evidence that the appellants had committed the military offences concerned was, he said, overwhelming. If that is so, it must be accepted then that the decision was a lawful one and there was no necessity to wait for the commission to establish the truthfulness of the allegations made against the appellants,” he said.

The lawyers for the soldiers had argued that the decision to convene the court martial when Prime Minister Pakalitha Mosisili had set up a Commission of Inquiry was also unreasonable.

The judge said Mokhosi had however argued that he had considered “the commission of inquiry and the court martial as serving two different purposes: the former is an investigative tool of the executive while the latter is a court”.

He said Mokhosi considered that “the recommendations of a commission are not binding on the executive whereas a court martial gives binding decisions”.

The judge said he does not think it is “possible to say (Mokhosi’s) decision in this regard can be stigmatised as irrational”.

The lawyers had argued that when the court martial was convened, SADC had already set up a commission of inquiry to investigate whether there was a mutiny or not.

They argued to set up the court martial while SADC was already dealing with the matter was irrational.

They also said the LDF had filed an application at the commission to bar it from investigating the mutiny but Justice Mphaphi Phumaphi had dismissed their application. They said when Justice Phumaphi dismissed the application he actually deposed of the court martial but Mokhosi went ahead with the court martial proceedings.

Justice Farlam said courts of law should not attribute to themselves superior wisdom in matters entrusted to other branches of government.

Quoting lawyers representing Mokhosi and the LDF, Justice Farlam said “National security is the responsibility of the executive government…a matter upon whom the responsibility rests, and not the courts of justice, must have the last word”.

The judge also dismissed the lawyers’ claims that convening the court martial would impinge on the soldiers’ prospects of a fair trial.

Justice Farlam said the soldiers had not suggested that sections 93 and 94 of the LDF Act which deal with the constitution of courts martial are unconstitutional.

“The court martial as constituted by the convening order complies with those sections,” and “the only objection that can be raised in that regard would relate to alleged bias on the part of the members of the court, a matter that can be dealt with”under rules of the court.

He said the Court of Appeal in another case had held that courts martial in Lesotho are required to conform to principles of natural justice, to conduct trials fairly and to be impartial, unbiased and independent in the sense and to the degree appropriate to their nature as statutory military courts.

“It is also important to bear in mind that any unfairness in the proceedings in the court martial convened by (LDF Commander Lieutenant General Tlali Kamoli) will be able to be dealt with by the High Court in the exercise of its review powers under section 119 of the Constitution,” he said.

The judge said it is not appropriate to consider in anticipation “whether the Court Martial will be unfair”.

“If the Court Martial is unfair the (detained soldiers) will be able on the strength of these two decisions to have the proceedings set aside,” he said.

The judge was referring to the Court of Appeal judgements in Commander Lesotho Defence Force and Others v Maluke and Sekoati and Others v President of the Court Martial and Others in which it was held that the High Court has powers to review decisions of the Court Martial.

The detained soldiers’ lawyers also argued that Mokhosi’s decision to appoint Colonel Bulane Sechele as an assistant prosecutor infringes on the detained soldiers right to a fair trial, rendering the decision unreasonable and unfair.

They said this was so because Sechele was listed in the charge sheet as one of the targets in the alleged conspiracy to mutiny.

However, Justice Farlam said “Colonel Sechele’s appointment as an assistant prosecutor at the Court Martial is severable from the main decision to convene the Court Martial and it accordingly does not invalidate that decision”.

Turning to the prayer to order the release of the detained soldiers, Justice Farlam said “it is enough to say that no case for their release has been made out on the papers”.

“The only affidavit dealing with an arrest was the founding affidavit deposed to by (Brigadier Tlhoriso Mareka), who did not purport to deal with what happened when the other (soldiers) were arrested,” the judge said.

“In the circumstances I am of the opinion that the appellants’ attack on the convening of the court martial must fail.”

Lawyers for the government were Advocates MotieaTeele KC and LM Motikoe instructed by Attorney Qhalehang Letsika.