High Court acting judge Justice Keketso Lesihla Moahloli on Monday ordered the immediate release of Corporal Montšuoe Motseko from military detention after ruling his incarceration was unlawful.
The judge said Corp Motseko was detained in violation of the Lesotho Defence Force Discipline Regulations of 1998.
The regulations require that an officer facing charges before a Court Martial should be afforded a hearing to explain why he or she should not be detained pending trial.
Corp Motseko was arrested on 9 December 2015 for allegedly making false statements against Major Bulane Sechele and Lieutenant-Colonel Thato Phaila. He allegedly made the statements in papers filed before the High Court on 27 July 2015 in support of an application in which he sought to be released from custody after being arrested for suspected mutiny.
After his release, Corp Motseko was rearrested for allegedly making the false statements against the two officers.
However, Corporal Motseko on 22 December 2015 filed an urgent application before the High Court seeking an order that his detention be declared unlawful ab initio.
Corp Motseko also wanted charges preferred against him on 9 December 2015 to be set aside, arguing they amounted to “double jeopardy” as he had already been slapped with similar charges on 4 August 2015.
Justice Moahloli on Monday ruled that Corp Motseko should be released from detention, although his arrest was lawful.
“The arrest of the applicant on the 9th December 2015 was not unlawful ab initio, but the decision to place him under close arrest was unlawful in that it was not made in compliance with the statutory requirements.
“The first respondent is consequently ordered to release the applicant from close arrest forthwith.
“The charges preferred against the applicant on the 9th December 2015 are set aside,” reads the order.
The respondents were the LDF Commander, Court Martial President and Attorney General.
Read Corporal Motseko’s charges: “In making a complaint before the High Court of Lesotho relating to his detention in the Military Detention Centre (Maseru Maximum Prison), he knowingly and falsely stated, in his founding affidavit under Paragraph 12 thereof, that Major Sechele said ‘…I should not bother wasting money on lawyers and if I could be cooperative and testify against a few individuals like Mahao and Motoa, they will never touch me again. I gave him my word that I would do as he ordered’.
“Furthermore, he knowingly and falsely stated, in the same founding affidavit under paragraph 16 thereof, that Lt-Col Phaila said ‘…I denied myself a golden opportunity by refusing to implicate other soldiers on the alleged mutiny’”.