Another court blow for Kamoli

…ex-army boss denied Phumaphi Commission report

Mohloai Mpesi

Former army boss, Lieutenant General Tlali Kennedy Kamoli’s bid to compel the sitting Prime Minister, Dr Moeketsi Majoro, to the witness box has been denied.

Advocate Molati Letuka, who represents the incarcerated Kamoli, earlier this week made a request before the presiding Judge Charles Hungwe, seeking the court’s leave to file a separate constitutional application compelling Dr Majoro to produce the 2017 Phumaphi Commission of Enquiry report which probed matters surrounding the killing of the late Lieutenant General Maaparankoe Mahao who was fatally shot on June 25, 2015 in Mokema in the outskirts of Maseru.

The Phumaphi Commission was deployed in Maseru from July 20, 2015 on a 60-day mandate chaired by a Botswana judge Justice Mphaphi Phumaphi.

According to the report of the Commission; the former Prime Minister, Motsoahae Thomas Thabane removed Kamoli as commander of Lesotho Defence Force (LDF) and replaced him with Mahao hence “…the death of Mahao is therefore preceded by power struggles in the LDF.”

The Commission therefore made findings that a conclusive finding could not be reached whether there was mutiny or not as affected parties could not testify. Those who appeared before the commission did not say much about the mutiny plot on the grounds that the matter is sub judice before the Court Marshal.

“The Commission established that some suspects of the alleged mutiny plot were tortured in a view to have them confess to mutiny and implicate others. It could therefore be concluded that the alleged mutiny might be a fabrication,” the Commission’s report reads.  

The same report continues that “…although different accounts were given on the manner in which Brigadier Mahao was shot, the commission found that on the balance of probabilities, the evidence shows that Brigadier Mahao did not resist arrest.”

“The degree of force used on the deceased was not commensurate to the danger he posed with his pistol. That proper preservation of evidence was not done (washing of clothes and the body, vehicles and the firearm),” the report reads.

It also goes on to indicate that the appointment of Mahao on August, 29, 2014 was legal and that the removal of Kamoli was also legal. The report says that the demotion and removal of Mahao was legal but flawed as well as the reappointment of Kamoli, which is said to be legal but also flawed.   

This came after the fourth state witness in the matter retired Major General Lineo Poopa completed his testimony in which he remembered the days when Lieutenant General Khoantle Motšomotšo was allegedly shot by Colonel Tefo Hashatsi and Brigadier Bulane Sechele in September 2017.

Poopa told the court in his initial testimony that Kamoli and Mahao had squabbles until they were taken to SADC headquarters in Botswana (Kamoli went first and Mahao followed when Kamoli returned) for a cooling break in a bid to restore peace and stability in the country.

He remembered one occasion where he was in Tanzania with Kamoli and Mahao where Kamoli said he heard that Mahao was speaking nonsense in Botswana saying he is senior and was supposed to be made a commander.    

The other soldiers who are incarcerated and charged alongside Kamoli in the matter are; Sergeant Lekhooa Moepi, Corporal Marasi ‘Moleli, Sergeant Motsamai Fako, Corporal MotÅ¡oane Machai, Corporal Mohlalefi Seitlheko and Corporal TÅ¡itso Ramoholi, Captain Haleo Makara and Captain Litekanyo Nyakane.    

Justice Hungwe declined the application citing that “…the question of access to Phumaphi Commission report was dealt with in this court in 2021 when a judgment was delivered by this court on March 29, 2021.”

Molati submitted before Justice Hungwe that Poopa provided his testimony in the Phumaphi Commission of Enquiry, thus he should be given a report in order to draw his questions basing himself with the evidence Poopa furnished before the Commission.

He said if the report cannot be attained, the court should allow him to file a constitutional application to compel the sitting Prime Minister to produce the report.

“Counsel accepts that decision, but argues further that since then circumstances have changed and the grounds given by the Southern African Development Community (SADC) secretariat for refusal to release the report no longer exist since according to him NRA is running scores and the fears that were expressed by the Secretariat no longer exist.

“If I understood counsel’s application correctly, of which I believe I did, he intends to access the report immediately for the purposes of preparing his cross examination. If this is not practical then the argument goes. Then the Prime Minister must be subpoenaed to come and explain to this court how the government of Lesotho which set up the commission does not have custody of the product of that commission,” Justice Hungwe said in his ruling.

He said in any event, the Prime Minister is a competent and compellable witness under the law.

“The Act gives the court power to deal with that witnesses who were subpoenaed, but either failed to attend court at the appointed date and time, or attended court but failed to remain at court until was excused by the judicial officer presiding over the matter to which the subpoena relates.

“In the present matter, this section is of no application because no subpoena was ever issued to anyone connected to the Phumaphi Commission report to attend court today.

“The judgment of this court on the production or discovery of the Phumaphi commission report is still extent.

“In my view, it has not been shown to me by way of any evidence through affidavit or other evidence that circumstances have changed in respect of the parties over whom this court has jurisdiction to review its order on this subject.

“By saying this I do not close the door to the production of any other evidence during the course of this trial. But as matters stand, that judgment remains the position of this court on the subject,” he said.

The Judge said should it occur that the Phumaphi Commission report becomes available after all the state witnesses have testified, he would then have to consider recalling witnesses whom the defence wanted or wished to cross-examine on the Phumaphi Commission report.

“The rules of cross-examination will then apply with those witnesses I recalled. Consequently I decline the invitation by counsel for accused 9 to subpoena the sitting Prime Minister to testify at this point in time.

“I also decline to grant leave if any such leave were required to file an application to compel the Prime Minister to produce the Phumaphi Commission report.

“I order that Mr Molati continues with this cross examination of General Poopa,” he said.

The case is on-going in the High Court of Lesotho.