There were heated exchanges in the Court Martial on Tuesday between lawyers representing 23 soldiers accused of plotting to overthrow the army command and court president Major-General Mojalefa Letsoela.
The lawyers had pointed out they could not continue with proceedings because the Lesotho Defence Force (LDF) was failing to respect High Court decisions regarding the release of the soldiers.
Major-Gen Letsoela told the lawyers his court did not have the powers to force the LDF into complying with High Court rulings. This response drew angry reactions from Advocates Kuili Ndebele and Monaheng Rasekoai who are part of a team of lawyers representing the mutiny suspects detained at Maseru Maximum Security Prison between May and June this year. Other members of the defence team are Advocates Tumisang Mosotho, Christopher Lephuthing, ‘Mole Kumalo, Khotso Nthontho and Booi Thabane.
Advocate Ndebele told the court he had three concerns he needed addressed before the Court Martial proceedings could continue.
“The concerns we have are non-compliance of a High Court order (of 5 October 2015) placing all the accused under open arrest, their treatment in prison, and their legal fees,” Advocate Ndebele said.
“From the beginning, there was non-compliance with the rules by the LDF. The arrest and detention of the suspects were not in line with the rules. The High Court also ordered the release of the accused to open arrest but our clients are still in prison.”
But before he could proceed, Judge Advocate SP Hancke interrupted him, asking if what he was talking about concerned the Court Martial.
The question seemed to annoy Advocate Ndebele, who retorted: “This court is a creature of Statute. You are bound by laws to abide by the constitution and to observe judgements of the courts of law. You’re bound first and foremost to protect the accused. You can’t sit and do nothing when the accused are persecuted.”
Advocate Ndebele also said the jury should ask if the soldiers were “properly before the court”.
He continued: “The accused are not properly brought before you. The institution, the LDF, did not comply with the High Court order releasing the accused from detention to open arrest. My instructions are if you can’t consider and protect the rights of the accused, then we cannot continue before this court.
“If this court is not observing the constitution and laws of this country, then it is useless to be before this court. If the LDF is enforcing discipline by having this Court Martial, it’s ironic that it’s failing to observe the laws itself,” said Advocate Ndebele.
But Maj-Gen Letsoela told the lawyer that the Court Martial was not the proper authority to deal with the concerns he was raising.
“Our opinion is that the High Court is the proper jurisdiction to approach for the concerns on non-compliance and detention of the accused,” Maj-Gen Letsoela said.
“We also don’t have the powers to prescribe how legal aid should be granted to your clients. However, we strongly recommend to government to pay considerable legal fees for the accused.
“We therefore find no substance to the concerns of the defence and the Court Martial should continue with proceedings.”
However, Advocate Ndebele continued to argue his points.
“Since we left this court in October, our clients were placed under solitary confinement despite court orders for their release. This is the 48th day of their solitary confinement. Solitary confinement is purely punishment for breach of discipline in detention centres.
“They are placed under 24-hour solitary confinement and given five minutes to eat and 15 minutes to see their families. We are also only allowed 15 minutes to see our clients.
“If you look at the rules, you’d find that you can only place a person under solitary confinement if they have been proven medically fit by a medical doctor, to undergo such punishment. This was not done. The rules were not obeyed here.
“We cannot continue if they are not released from solitary confinement and placed under open arrest,” Advocate Ndebele told the court.
“What is also disturbing is that the LDF, an institution that continues to torture the accused, is seeking justice through the Court Martial.
“But if the imprisonment of the accused continues, the defence team is not going to continue appearing before this court”.
Advocate Ndebele also said another concern was the accused could not pay their legal fees.
“We took the initiative to seek from the responsible ministry, assistance on legal aid. Our letter was delivered on 21 September. However, the response we received only yesterday was that they have taken note of the matter. It would be difficult to represent our clients under these circumstances as it is expensive to be here,” said Advocate Ndebele.
Advocate Rasekoai also said the court had asked “a pertinent question whether it has jurisdiction over the concerns tabled before it”.
“There is a fundamental basis; you have the jurisdiction on the propriety of the accused appearing before this court,” he said.
Advocate Rasekoai emphasised the court should realise that arguments raised by the accused were not just political protests but based on the law.
“The court cannot turn a blind eye to the torture perpetrated on our clients. Imprisonment beyond 15 days is torture. We are really skating on thin ice here,” said Advocate Rasekoai.
Meanwhile, the prosecution represented by Advocate Roland Suhr, accused the defence team of failing to file their objections in October, as agreed, and also to notify the court that they were not having enough time to consult with their clients.
He also said the Court Martial was not the right forum for the lawyers to lodge their complaints against the LDF.
“This court is not the right forum for the complaints to be ventilated. They know that the High Court can make orders relating to the detention of the accused,” said Advocate Suhr.
The court-martialed soldiers are 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.