Lawyers lose court martial jurisdiction challenge

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Billy Ntaote

Acting Major-General Mojalefa Letsoela on Tuesday said the Court Martial he is presiding over has the jurisdiction to hear the case of 23 Lesotho Defence Force (LDF) soldiers charged with mutiny.

Acting Major-General Letsoela is the president of the court and made the ruling following heated exchanges between a team of lawyers representing the soldiers and the prosecution.

Brigadier Mareka, Brigadier Poqa Motoa, Colonel Stemere, Colonel Kolisang, Major Makhetha, Captain Chaka, Second-Lieutenant Mohasi, Sergeant Mokhobo, Sergeant Semakale, Sergeant Lekhabunyane, Corporal Mokhoro, Corporal Letsilane, Corporal Lipoto, Corporal Manaka, Corporal Mohatlane, Corporal Chele, Corporal Motseko, Lance-Corporal Jobo, Lance-Corporal Molefi, Lance-Corporal Makhooane, Private Pama, Private Bolofo and Private Ralitlemo were arrested between May and June 2015 on allegations that they were part of a foiled plot to topple the army command.

The LDF says the alleged plot was masterminded by slain former army commander Lieutenant-General Maaparankoe Mahao. Lt-Gen Mahao was shot dead in Mokema on 25 June last year by soldiers who had come to arrest him for the alleged mutiny.

The 23 soldiers have since been brought before a Court Martial, whose proceedings resumed on Monday this week after they were adjourned on 4 December 2015.

On Monday, Prosecutor Advocate Roland Suhr and the defence team argued over the court’s authority to hear the matter. The arguments continued the following day when Acting Major-General Letsoela dismissed the lawyers’ objections.

One of the lawyers, Advocate Christopher Lephuthing, had told the court that the trial could not continue in the absence of the SADC Commission of Inquiry report. The commission, led by Justice Mpaphi Phumaphi in investigating Lt-Gen Mahao’s shooting and other security-related matters, touched on the mutiny charges but its report has not yet been made public. The government has announced that it would present the report before parliament on Monday next week, but the prime minister has hinted that certain parts could be expunged in the interest of national security.

“The court is now faced with a dilemma whether it awaits the report or not. This trial cannot continue in this quagmire; the report is relevant to this case as it dealt with this alleged mutiny plot. We also want to know how the commission treated evidence given by Senior Inspector Mapola of the Lesotho Mounted Police Service who was the investigator, as it deals with the alleged mutiny,” said Advocate Lephuthing.

The lawyer also argued that the Court Martial collapsed after the LDF’s attempt to stop  Justice Phumaphi from dealing with the mutiny charges “was dismissed with the contempt it deserved”.

“We are keen to know the commission’s findings as they relate to the arrests of my clients by the LDF. I expect a direct ruling because I won’t come here to argue before a court I don’t take as a court,” Advocate Lephuthing said.

Another member of the defence team, Advocate Kuili Ndebele, argued the court didn’t have either “a subject-matter or personal jurisdiction” to try the accused.

Advocate Ndebele further pointed out that the accused’s charge-sheet did not have “a prima facie charge of mutiny”.

The charge sheet, he added, indicated that senior officers such as Brigadier Thoriso Mareka wanted to kill their juniors which he argued could not be called a mutiny.

“Here we see the LDF Commander and his command charged of having planned to overthrow lawful authority. Against who could Commander Mahao plot a mutiny? Our humble submission is that the charge, as submitted, does not imply mutiny.

“Our submission is that Lt-Gen Mahao could not plot a mutiny against himself. And Brigadier Mareka and Brigadier Motoa cannot be charged with overthrowing their juniors. The real purpose and intentions of the accused is said to have been to arrest and kill (LDF commander) Lt-Gen Tlali Kamoli. However, we are saying it was to remove a Mosotho man, a civilian.

“The charge is perfect, but maybe it should have been conspiracy to commit murder,” said Advocate Ndebele.

Yet another defence lawyer, Advocate Monaheng Rasekoai, raised the argument of jurisdiction when he addressed the court.

“The above-cited people plead you don’t have the right to try the case as the prosecution didn’t come to court with clean hands because of the unlawful manner of the arrests, unlawful act of torture and unlawful act of forcing the accused to implicate one another.

“We submit the prosecution cannot be allowed to abuse court processes. The prosecution of a person who is brought to court illegally would be a display of double standards.

“We want to adduce evidence as there are claims of torture and acts of torture perpetrated on our clients. The state prosecution is tainted,” argued Advocate Rasekoai.

Advocate Rasekoai added state security agencies cannot torture a suspect, put him in the dock and accuse him of a crime when they would have committed a crime themselves.

Another lawyer for the accused soldiers, Advocate Tumisang Mosotho, reiterated arguments by his colleagues that the commander of the LDF cannot be charged with mutiny.

“The commander is the symbol of the LDF. It’s an insult to say a commander committed mutiny. And if these charges are preferred on the accused after 30 August 2014, then the charges are an insult,” Advocate Mosotho said, adding torture attracts universal jurisdiction for a reason.

“The League of Nations, after the (first) World War, declared that acts of torture are demeaning and diabolic. And this is how serious the world takes acts of torture. Even a magistrate court cannot remand a person who has been tortured. Even the prosecution should decline to prosecute where there is an allegation of torture.

“The state should take it upon itself to investigate the torture. Everything has to come to a stop if torture is mentioned,” Advocate Mosotho said.

“Now that the prosecution is aware that there has been torture, it would be a sad day for a lawyer to say we should ignore such allegations.”

However, Advocate Suhr argued the jurisdiction challenge should be dismissed and directed the court to the Court Martial’s convening order and also the LDF Act of 1996 Section 95.

“This is slippery territory as they are mentioning perceived misconduct. The court can’t deny itself jurisdiction on perceived misconduct or claims of torture. The torture should be considered at a later stage of the proceedings,” said Advocate Suhr.

Acting Major-General Letsoela then dismissed the lawyers’ jurisdiction challenge, paving the way for the trial to continue.

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