MASERU — An officer who is facing court martial for breaching the army’s code of conduct yesterday urged the Constitutional Court to strike down some sections of the military law as inconsistent with the constitution.
Captain Bulane Sechele is facing several charges before the court martial including circulating his opinion amongst some soldiers regarding the legality of the Public Officers’ Defined Contribution Pension Fund Act of 2008 without seeking permission from the army commander.
He is also being charged with filing a constitutional case challenging the legality of the same law without seeking the permission of the army commander Lieutenant General Thuso Motanyane.
The army authorities say Sechele’s acts amounted to breach of conduct because they violated some provisions of the Lesotho Defence Force Act of 1996.
But Sechele yesterday urged the Constitutional Court to declare the provisions of the Act under which he is being charged unconstitutional.
He said the constitution requires that any acts constituting an offence under the law should be stipulated.
He told the court that the law under which he is being charged in the court martial does not stipulate what acts should be considered as constituting offences under the said law.
“My contention is that none of the acts so alleged are quoted anywhere under the disciplinary law of the Lesotho Defence Force as acts constituting offences under the two sections of the Act.
“The alleged acts were not and are still not offences under the said sections at a time when they were committed,” he said.
Sechele said it would be absurd if soldiers would face court martial and are charged under the same provisions when it is not stipulated what acts constitute offences that are prejudicial to the discipline and good order in the army.
He said this gives army authorities an opportunity to lay any charges against an army officer whenever they feel convenient.
“This amounts to abuse of power,” he added.
He said a soldier should also enjoy constitutional rights like other members of the society.
“A soldier does not cease to be a citizen of Lesotho. He only changes the status just like a married person,” Sechele said.
He said it is abuse of power for the army authorities to lay charges against him for, among other things, filing a constitutional case challenging the pension scheme.
“I came before the High Court appearing before the Constitutional Court claiming for my legal right and that is considered an offence by the military law; that’s absurd.”
Sechele said it would be different if the military law clearly stated that a soldier should seek the army commander’s permission to approach courts of law.
“In the event that the said sections are left as they are they invite for the abuse of power,” he added.
But Advocate Henry Viljoen, a senior counsel from South Africa, said there was nothing unconstitutional about the provisions of the military law under which Sechele is being charged before the court martial.
Viljoen who has been hired to defend the government in the case said it is not possible to list all acts that constitute offences under the provisions under which Sechele is being charged.
He rejected Sechele’s argument that it is not clear what acts amount to ill-disciple and misconduct in the army.
“Anyone reading the charges would say yes! They fall under the Lesotho Defence Force Act.
“For a soldier to circulate the letter amongst members of the army including junior officers is ill-discipline,” Viljoen said.
He said Sechele should face the court martial because one of the charges is that he behaved in an outrageous manner during the proceedings of the board of inquiry that was formed to investigate him last year regarding his objections to the pension scheme.
“One cannot say the applicant (Sechele) did not know that his conduct was not good before the board when he behaved outrageously with insults.
“Those charges are correctly preferred against him,” Viljoen said.
But Sechele denied insulting anybody during the proceedings of the board of inquiries.
“Was it not correct to tell the board of inquiries that it was established malafide (without good faith)?
“I said this because I know I was a victim because I had testified in a case in which a soldier was tortured,” he said.
Sechele became somehow uncomfortable when Viljoen submitted that he should pay costs of the case because he had made ‘scandalous allegations’ against top army officials whom he said have clean records in his court papers.
Sechele rose up and said: “Now that the learned senior counsel has talked about the clean record of some top officials I think I should address this issue.
“People have been tortured there!”
But Viljoen objected to Sechele’s argument on grounds that he was now giving evidence from the bar.
The court stopped Sechele from spilling the beans further about torture incidents in the army.
The court will deliver judgment on a date to be arranged.
The bench was composed of Justices ‘Maseforo Mahase, Lisebo Chaka-Makhooane and Lebohang Molete.