TWENTY-THREE RISK UNFAIR TRIAL AND DEATH PENALTY
Twenty-three members of the Lesotho army face a court martial on mutiny charges. Twenty-one have been in custody since May and in solitary confinement for over a month. There are concerns that evidence against them was obtained through torture and that they will not receive a fair trial. If found guilty, they face the death penalty.
The head of the Lesotho Defence Force (LDF), Lieutenant-General Maaparankoe Mahao, was dismissed from the army in May after months of political instability. Shortly afterwards, approximately 50 soldiers perceived to be loyal to him were arrested. Lawyers representing their families brought legal applications demanding that the detainees be produced in court.
During court proceedings, many of the soldiers alleged that they had been tortured and ill-treated. Over half of them were later released with 23 remaining in custody, charged with mutiny. Some of the released soldiers have become ‘accomplice witnesses’, giving evidence against the 23 accused. It is believed that their testimonies were obtained through torture whilst they were in detention.
The soldiers have been held at Maseru Maximum Security Prison since May. Two have been released on bail in the last three months. All 23 are charged with mutiny and face a court martial. If convicted, they could be sentenced to death.
They appeared before a court martial on 5 October, but proceedings were suspended. Twenty-one remain detained and since mid-October have been in solitary confinement. Prolonged solitary confinement (in excess of 15 consecutive days) amounts to torture or other cruel, inhumane or degrading treatment or punishment. If they are permitted consultation with their lawyers, these meetings are only allowed for 20 minutes at a time and are not private. There is serious concern for their emotional and physical well-being.
The soldiers challenged their detention and the composition of the court martial in the Maseru High Court. On 5 October, the High Court declared the manner of their continued detention unlawful and ordered their release on “open arrest”, a form of bail. The LDF failed to comply the court order. The lawyers representing the detainees have also been subjected to repeated intimidation and harassment, including death threats.
The court martial is expected to resume its work on 1 December. Given the manner in which the panel was convened and the treatment of the detainees and their legal team to date, there are concerns that they will not receive a fair trial.
Hashatsi journey in challenging SADC Commission
The High Court of Lesotho on Friday 5 February 2016 dismissed the Transformation Resource Centre’s (TRC) amicus curiae application which claimed that the application in which Special Forces Commander Lieutenant Colonel Tefo Hashatsi sought the High Court to declare the SADC Commission of Inquiry illegal, had been overtaken by the events.
On 16 October 2015 Hashatsi had filed an urgent application in the High Court challenging the legitimacy of the SADC Commission and its proceedings. He also accused of the commission of bias against him.
On 18 January 2016 when the case resumed, TRC Attorney Tumisang Mosotho made a submission to court that there was no point in continuing with Hashatsi’s case as SADC had already made a resolution on the same day that the Phumaphi Report should be made public by 1 February 2016. TRC presented the communique issued by the SADC Double Troika dated 18 January 2016 which indicated, amongst others, that the body would not be bound by decisions of the courts in Lesotho: SADC would regard such decisions as of no legal force. Justice Tšeliso Monaphathi then invited counsel for the applicant (Hashatsi), 2nd and 3rd respondents (SADC Commission and Justice Phumaphi), 5th respondent (Mahao family) and amicus curiae (TRC) to address the Court on the implications of paragraph 6 of the communique which says SADC would not be bound by any decision of the Court; and for TRC to prepare an application of mootness.
On 5 February 2016 the Court started the proceedings by hearing the implications of paragraph 6 of the communique by counsel before TRC could address the point of mootness. Adv. Tebalo Potsane representing SADC Commission and Justice Phumaphi submitted that paragraph 6 reiterated his submission that the High Court had no jurisdiction over the SADC Commission and Justice Phumaphi, and that decisions made by it would not be enforceable. Adv. Haae Phoofolo KC representing the Mahao family also argued that it would not be in the interest of Lesotho and the public if the Court makes unenforceable orders. He further argued that the courts should not give orders which are likely to cause political chaos, no matter lawfulness of such orders. Adv. Motiea Teele KC submitted that paragraph 6 put the Court under ridicule, being a pronouncement of politicians. He argued that the Rule of Law was being undermined by politicians, that and SADC was holding the Court in contempt: that it was a matter of the courts to decide whether SADC and the Commission enjoyed immunity and privileges, not politicians.
In its submissions on the mootness of the proceedings, TRC submitted that prayers sought by Hashatsi had been overtaken by the events on the basis of SADC’s decisions of 18 January 2016: with the Commission having completed and finalized its proceedings and the Phumaphi Report has been released, such prayers as challenging the Commission’s proceedings had become moot. It was therefore against the public interest to continue with Hashatsi matter. TRC concurred with the defendants that if the Court continued with the Hashatsi case, it will only bring an embarrassment upon itself by delivering unenforceable judgments. It is therefore in the public interest to stop the case.
In replying, Adv. Teele KC submitted that there is no mootness involved. He conceded that courts do not decide academic or abstract matters but there are exceptions to this general rule. These exceptions include but not limited to; complexity of the issue and importance of the issue. He referred the court to the case of Lesotho National Development Corporation v Maseru Business Machines (Pty) Ltd & Others  LSCA 48. Adv. Teele KC further argued that assuming that the case is moot, the case is of great importance and it contains complex issues. He submitted the issue of mootness is premised on the decisions taken by SADC Double Troika. The decisions of Troika are not final and not binding in Lesotho. He argued that separation of powers is being undermined by politicians. The court must consider the communique carefully because it undermines the independence of the court. Hashatsi case must be determined with law and only law should apply.
At this juncture Justice Monaphathi dismissed TRC application saying he would give a judgment on the issue on Monday, 8th February 2016.
On the 8th February 2016, reasons for dismissing of TRC application were given. Justice Monaphathi sought to ensure that independence of the judiciary, rule of law and separation of powers are respected. These cannot be compromised by the decision of politicians in the Troika.
A remarkable thing is that Hashatsi application was also dismissed on the same day. In his judgment, Justice Monaphathi dismissed Hashatsi case indicating that it was premature for Hashatsi to seek to nullify the SADC Commission before it had completed its inquiry. This is so because Hashatsi case came by way of a review, and a review is only done on completed proceedings. Hashatsi has appealed the ruling. The first session of the court of Appeal is scheduled for April 2016.
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