A lawyer representing 23 Lesotho Defence Force (LDF) members charged with mutiny is challenging the composition of the Court Martial jury appointed to preside over the trial.
Advocate Khotso Nthontho is also objecting to a convening order issued by Defence Minister Tšeliso Mokhosi on 13 August 2015 establishing the military court in question.
In his application filed before the Court Martial yesterday, Advocate Nthontho wants all the judges, save for South Africa’s Justice SP Hancke, to recuse themselves for fear they might not be fair to his clients.
In addition, the lawyer says his clients are challenging the appointment of Major-General Letsoela as president of the Court Martial, as well as the presence of Colonel Rapele Mphaki, Major Ketseletso Mofoka, Major Kamoho Ramoriting, Major Tlelima Matia, and Major ‘Marethabile Kebane on the bench.
The soldiers also want Waiting Members of the court, Captain Noahana Lebona, Captain Tieho Rankhone, Captain Senatla Damane and Captain Mosuoe Letsie removed from the trial.
The soldiers, who were arrested between May and June this year, face three mutiny-related charges, which are: The use of violence or threat of use of violence contrary to Section 48 (1) (a) of the LDF Act of 1996 read with sections 48 (2) and 103 (1) in the event that it is not proved that such mutiny involved the use of violence or threat of violence; Incitement to commit mutiny involving the use of violence or threat of use of violence contrary to Section 48 (1) (b) of the Act read with sections 48 (2) and 103 (1) in the event it is not proved such mutiny involved the use of violence or threat of violence; Failure to use utmost endeavours to suppress a mutiny or failure to report that a mutiny is taking place or is intended contrary to Section 49 of the Act.
After being served with the application yesterday morning, Maj-Gen Letsoela adjourned proceedings, saying the court was going to consider the application before making a decision today.
In his affidavit before the Court Martial, one of the soldiers, Brigadier Poqa Motoa, explains he, and his co-accused, are raising the objections because they fear the officers appointed to the bench might be biased against them.
Brig Motoa wrote in the affidavit: “I and 22 other accused persons object to the appointment of Major-General Letsoela (acting) on the basis of the following reasons:
“The structure of the LDF as provided for in the staff list (establishment list) provides for one Lieutenant-General as the commander of the LDF, two major generals-the Deputy Commander and Chief of Staff. Major-General Lotsoela’s position (acting Major-General) is not provided for in the staff list. In other words, the two Major-General positions are not vacant as the incumbents are still in occupation. He cannot therefore act into a non-existent position. He has solely been promoted to handle a case concerning two of his seniors in terms of rank and experience at that is Brigadier Mareka and Brigadier Motoa and that is untenable.”
Brig-Motoa also says in the affidavit that Maj-Gen Letsoela and the rest of the members of the panel except the Judge Advocate (Justice SP Hancke) attended a May 18 meeting where Deputy Commander, Major-General Khoantle Motšomotšo “accused and concluded that the 23 accused soldiers were mutiny plotters”.
The statement, he adds, was corroborated by the defence minister on radio on 21 July 2015 “where he said seniors / old officers had cheated junior and young children in the army…that they have even called their parents to address such issues and such youngsters in the army have been reprimanded”.
The Brigadier also says in his affidavit that at a military parade held on 26 May, “Maj-Gen Motšomotšo made a statement in front of the LDF commander, senior officers and other soldiers that there are some black sheep in the army which must be dealt with legally immediately and he was inferring to the allegations of a plot of mutiny within the army”.
Brig Motoa adds Maj-Gen Letsoela was present when Maj-Gen Motšomotšo made the statement and argues he therefore, cannot be impartial or “seen to be impartial as he has always been present in such meetings or military parades together with the rest of the members of the panel”.
He also claims the panel was promoted immediately after it was constituted. The promotion, he claims, was done solely by the LDF commander “excising his discretion contrary to LDF promotions policy on skipping ranks”.
The promotions, he further notes, “were pre-emptive reward to the panel by the commander who has a vested interest in the outcome of the Court Martial”.
“The panel has to investigate allegations of mutiny and investigate allegations as to the veracity or otherwise of claims to the effect that the 23 accused persons planned to kill other soldiers who were perceived as being supportive to or of Lt-Gen Kamoli, who had not stood down as commander after Brigadier Mahao had been gazetted as commander on the 29th of August 2014. The promotion is considered a pre-emptive reward to the panel by the commander who has vested interests in the outcome of the case.”
On the part of Colonel Mphaki, the soldiers don’t want him on the panel because “he heads a unit in the LDF- Military Intelligence which was tasked with arresting, or kidnapping or abducting” them.
“The unit also interrogated the 23 accused persons and as cited in the habeas corpus matters before the High Court. It defended as it was a party thereto. So Colonel Mphaki is privy to all the dealings of his unit and to the information extracted through torture. He cannot therefore be impartial,” noted Brig Motoa in the court papers.
He also says the accused are rejecting the entire panel because it was appointed by Minister Mokhosi they said “is not impartial but clouded with bias”.
Brig Motoa notes Mr Mokhosi’s statements in the media clearly indicate that he is not neutral in the matter.
In addition to Brig Poqa Motoa, the other soldiers set to appear before the Court Martial are Brigadier Mareka, 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.