Top Lawyers fume over TRC allegations

Mohloai Mpesi

Top lawyers representing the incarcerated former army commander Lieutenant-General Tlali Kamoli and his co-accused came out guns-blazing at the Transformation Resource Centre (TRC) this week.     

The letter responding to the Centre inked by Advocate Zwelakhe Mda, Kabelo Mohau KC, Attorney Qhalehang Letsika, Letuka Molati, Kao-Theoha and Ratau against the accusations that the lot was playing shenanigan delaying tactics in the proceedings of eight high-profile cases including the death of the late former army commander Lieutenant-General Maaparankoe Mahao who was gunned down in 2015.

The attorneys described TRC as “nothing but a political desk of a political formation in Lesotho masquerading as a human rights or nongovernmental organization.”

The centres letter outlined that, “Au courant with lack of due diligence on the part of the government which resulted in undue delays in the prosecution of high-profile trials for politicians and former members of the security institution (LDF and LMPS respectively) resulting from the SADC Commission of Inquiry,” the centre said.

TRC touched on the latest episode of the expired contract of the Zimbabwean-born judge, Justice Charles Hungwe which came to end on October 31, 2021, charging that the government ought to have had it renewed well in time.

“Apart from the legal shenanigans and tactics to delay the process of the criminal trials in form inordinate applications and postponement, the resignation of Justice Onkemetse Tshola hit hard on the progress of trials,” TRC said.

The Centre touched on the financial implications that crippled the judiciary, citing that the government has contributed toward the snail pacing of the trials by allocating a little budget to the judiciary.

The Centre further notes that one of the stunts pulled by government to frustrate the process in question relates to inadequate funding and assistance to the judiciary by the government. The Centre is of the view that lack of funding paralyses the functioning of the courts and has applied an intense pressure on the courts.

They said TRC is of the view that the current developments which have led to resignations and expiration of judges’ contracts should have been foreseen by the government which cares about justice and rule of law.

“With a heavy heart, the judicial, the Centre notes that the current episode involving Justice Hungwe adds to an ocean of judicial problems resulting from inadequate assistance from the two political branches,” the Centre said.   

In response to their concerns, the lawyers stressed that TRC is politically affiliated as they lauded the government of the then Prime Minister Thomas Thabane for doing all in its power could to capture the judiciary.

“Blinded by its party political agenda, the TRC came out in support of the removal of the then Chief Justice whose only sin was daring to call out the Government for interfering in judicial appointments. That Chief Justice had insisted that rather than import Judges, the Judiciary should be resourced financially, materially and in terms of manpower so that it could operate effectively and efficiently.

“Had that call been heeded, the Lesotho judiciary would have been strengthened as an institution so that the millions of Euro that have been expended on the so called high profile cases to date would have left tangible benefits to the judiciary as an institution instead of benefiting individuals. Unfortunately, as a result of the rejection of Chief Justice Nthomeng Majara’s wise counsel, when these cases are finally completed, there will be no lasting positive legacy that the judiciary can say it derived from being used as a pawn in this SADC/EU/Prime Minister Thomas Thabane project,” the lawyers said.

They continued that the dishonesty of the TRC is exposed by its purported espousal of the right to a fair trial while at the same time frowning upon the accused persons’ exercise of the same right by raising objections and filing applications when they felt that their fair trial rights were being violated. That the TRC makes its baseless accusations without giving concrete evidence of what it means by legal shenanigans resulting in inordinate delays.

“The TRC proceeds to give the impression that accused persons have been doing nothing but obstructing the course of justice,” they said.

“Someday, the whole truth will come out as to the processes and people that were involved in the recruitment of those foreign judges,” they said.

“It is strange that the TRC should be conflating the resignation of Justice Kabelo Lebotse who resigned around March, 2020, with Justice Tshosa’s resignation who resigned in August, 2021. By the way, what does the resignation of those two Justices have to do with the accused persons? Nothing!” they remarked.

They further articulated that in another application, an accused person had to go to court and assert his entitlement to be given witness statements while very strangely the Director of Public Prosecutions (DPP) strenuously opposed that application saying she will only release the statements once the trial had been set down. That the accused made it clear that he wanted the statements as early as possible so as not to delay the impending trial or end up demanding that the trial be set down to a far off date so as to enable him to prepare for it, but the DPP spiritedly and successfully opposed that application. The same DPP has now taken the posture that accused persons are delaying trials when they seek postponements after being served with statements on the days when their trial was to proceed.

“If the TRC was truly committed to seeing justice done in the so called high profile cases, it would have not been quick to pass judgment without the full facts. It would have sought to verify facts that it was possessed with all sides involved in these trials. But because it is not interested in the truth, it has not seen it fit to do that but to pass judgment based on inaccuracies and falsehoods,” the lawyers said.

They continued that another application concerned a situation where a judge entered a plea of not guilty when accused persons were raising a plea that the court had no jurisdiction to try him for the offence. They said in terms of the law governing trials in this country, accused persons called to plead to a charge are entitled to raise; a plea of guilty, a plea of not guilty, a plea that the accused has already been convicted or acquitted of the same offence with which he is charged, a plea that the accused has received the Royal pardon for the offence charged and a plea that the court has no jurisdiction (lawful authority) to try him for the offence charged as well as a  plea that the prosecutor has no title to prosecute.

They said the courts of law are required to demonstrate a high degree of impartiality and accuracy in the records they maintain, while the accuracy of such records is of utmost importance because should the matter have to go to a higher court, the outcome will be determined on the basis of the record kept by the lower court.

“No reasonable accused person would not be concerned by a court that fails to keep an accurate record of proceedings before it. It is even more worrisome where the record kept by the court includes a dialogue that never happened before that court. To the TRC, accused persons who raise concerns about such matters in the so called high profile cases are engaging in nothing but legal shenanigans meant to delay the cases. The TRC is so blinded by its hate for the accused persons and partisanship that it has lost all semblance of objectivity when it comes to these so called high profile cases.

“The TRC conveniently omits to mention the names of the two unarmed soldiers that were killed in cold blood at the Maseru Bridge in 2016. The TRC is mum about what justice the families of those two soldiers have got up to now. The TRC is completely silent about what justice countless Basotho who have been murdered at the hands of famo groups are receiving, and what justice countless other Basotho who have lost loved ones as a result of the heinous crimes that have rocked the country in the past few months have got,” they said.

They said among others, TRC ought to be reminded that two years between 2017 and 2019 passed with the accused persons suffering in jail without trial. They said the accused persons were denied bail when people accused of more heinous crimes have been granted bail without any opposition from the Crown.

“Again if the TRC were truly interested in the truth, it would have found out that while these accused persons were appearing in court and denied bail some other people were appearing before courts of law, at the behest of the DPP, read charges and immediately thereafter, the same courts would be told that the DPP is not possessed of any evidence to sustain the charges preferred against those people and the result would then be that those people would be acquitted! When will the TRC issue statements about these absolutely bizarre acts of those entrusted with the duty to prosecute people suspected of crimes?” the lawyers quizzed.

They concluded that, “Finally, it will be remiss of us not to sound a word “at the hand” played by SADC and the EU in undermining the independence of the Judiciary in this country. It was under the watch of these two bodies that the Lesotho Judiciary was vanquished by the Executive arm of Government. It was under the watch of these two organizations that for the first time in the history of this country, individuals accused of crimes were singled out for the administration of victors’ justice.

“Victors’ justice is no justice; it is selective and never fair.  It is certainly going to serve as a tripwire on this country’s path to true peace and reconciliation. History will judge these two organizations harshly,” they said.