LAWYERS representing soldiers detained in Maseru Maximum Security Prison are planning to sue the Lesotho Defence Force (LDF) for contempt of court after the military failed to release the mutiny suspects in line with a High Court ruling delivered on Monday this week.
High Court judge Justice Molefi Makara ordered the release of the 22 soldiers after ruling their continued detention was illegal. The judge said the soldiers should be placed under open arrest instead because they had overstayed in detention without appearing before the planned court-martial.
Justice Makara noted a directive issued by LDF Chief of Staff Major-General Lineo Poopa on 10 July 2015 extending the soldiers’ imprisonment, was unlawful.
However, the Lesotho Times has established the soldiers were still detained at the Maseru Maximum Security Prison yesterday, despite the judgment.
One of the lawyers representing the soldiers, Advocate Christopher Lephuthing, yesterday confirmed the pending legal action, insisting the soldiers should be released from custody and placed under open-arrest.
“They should be placed under open-arrest. There is no interpretation of this judgment other than reviewing and setting aside the decision to detain them,” Advocate Lephuthing said.
“I have already received instructions from our Senior Counsel (SC) in South Africa (Advocate Anna-Marie de Vos SC) to draft papers which we will file in court for contempt of court against the LDF.”
Advocate Lephuthing added the papers would be filed before the High Court today.
On the other hand, the LDF’s legal representative, King’s Counsel (KC) Motiea Teele said the judgment only gave the detainees a chance to be heard before a decision is made about their fate.
“We are still waiting to see the judgment so that we can study it thoroughly,” Advocate Teele said.
“But as the matter stands, we think the judgment does not prejudice us because it only gives them a chance to be heard before a decision either to place them under open arrest or close arrest can be reached.”
In their application, the soldiers wanted the court to unconditionally release them from the high-security prison in which they had been incarcerated since their arrest between May and June this year for allegedly planning to mutiny and topple the LDF command. In addition, the soldiers wanted the High Court to stop court-martial proceedings against them for the alleged rebellion. The detainees had further urged the High Court to set aside the defence minister’s order, which established the military court.
A total of 23 LDF members are facing the mutiny charges, including Brigadier Thoso Mareka, who was released from the prison due to ill-health. However, Colonel Mareka has since been placed under open arrest.
In his ruling, Justice Makara refused all the soldiers’ prayers except the one seeking their release from detention.
Justice Makara noted in his ruling: “It is not reflected in court papers that Major-General Poopa applied his mind on the personal circumstances of each detainee to determine if a particular detainee should be placed under close or open arrest.
“There is skepticism that Major-General Poopa has indeed excised his powers under Regulation 9 of the Defence Force (Discipline) Regulations of 1998.
“It is only after the applicants have been heard that discretionary action under Regulation 9 could be made by informing each accused if he could be placed under open or close arrest.”
The judge said Major-General Poopa should have given the detainees a hearing before deciding to place them in detention.
“Resultantly, Prayer 17, which is reviewing and setting aside the decision placing the applicants under close arrest as irregular and of no legal force, succeeds,” the judge ruled.
On the establishment of the court-martial, Justice Makara said Defence Minister Tšeliso Mokhosi acted within the law when he convened it.
“It is incidentally found that there is no merit in the argument that the second respondent (Mr Mokhosi) did not have jurisdictional facts in issuing the instrument convening the court-martial, pending the outcome of the SADC Commission of Inquiry.
“There were jurisdictional facts for him to establish the court-martial relying on information given to him that some people had risen against authority and he was enjoined by the law to do so.
“He would have neglected his duty if he had not done so. The court-martial should proceed as scheduled,” Justice Makara ruled.
The Southern African Development Community (SADC) Commission of Inquiry is currently probing the alleged mutiny, as well as the death of former LDF commander Maaparankoe Mahao, among other security-related challenges plaguing Lesotho.
Lieutenant-General Mahao was gunned down by LDF members on 25 June 2015 just outside Maseru, allegedly as he resisted arrest for being the mastermind of the mutiny.
Meanwhile, the soldiers whose release was ordered by the High Court are Brigadier 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.
The soldiers were represented by Advocate Anna-Marie de Vos (Senior Counsel) from South Africa, and Advocates Haae Phoofolo (KC), Christopher Lephuthing, and Koili Ndebele. They were instructed by Attorneys Khotso Nthontho and Tumisang Mosotho.
The respondents, among them LDF Commander Lt-Gen Tlali Kamoli, Mr Mokhosi, chairperson of the SADC Commission of Inquiry Justice Mpaphi Phumaphi and Attorney General Tšokolo Makhethe—were represented by Advocate Motiea Teele (KC).