Advocate Shaun Abrahams, the lead prosecutor in the attempted murder case involving inter alia, former army boss Lieutenant General Tlali Kennedy Kamoli, poked holes in the latter’s attempt to have president judge in the matter Justice Charles Hungwe recuse himself from the case.
Abrahams said the Kamoli’s conduct is nothing short of frivolous, fixations and delay tactics which require strict sanctions from the court, slamming the application which ought not to find its way into the court papers.
This after Kamoli addressed the court last week where he charged at the Zimbabwean judge for lacking the objectivity to preside fairly over the matter and deliver justice as expected since he hell-bent to, just like Abrahams, see him take the fall and subsequently get the noose. Kamoli said at first encounter, the judge had stated how he was going to ‘fix’ him over and above what Abrahams had earlier said, which was that he wanted him to be found guilty a duly get the death penalty.
He accused Hungwe of inter alia, biasness for the court’s impatience and never asking him about the whereabouts of his legal representative, advocate Letuka Molati, who had at the time been absent from court.
Subsequent to Kamoli’s speech where he had declared that as an incarcerated man with no power to fight the eminent, he is “ready to die,” if that was what it would come down to thus filing for the recusal of the judge as his fear is that he will not be awarded a fair trial.
His side was presented by Molati who was present before court yesterday, where he indicated that recusal cases always come down to become some of complex matters before court when a litigant requests the presiding judge to recuse himself with the apprehension that he may not get a fair trial.
He said in only about 3% of presiding officers asked to recuse themselves from cases agree with the accused and recuse themselves.
Kamoli is charged with attempted murder of the alleged simultaneous bombing of the homes of the former first lady Maesiah Thabane in Moshoeshoe II, ‘Mamoshoeshoe Moletsane and the residence of former Police Commissioner Khothatso Tšooana at Ha Abia on January 27, 2014.
He is charged along with Major Pitso Ramoepana, Captain Litekanyo Nyakane, Heqoa Malefane and Corporal Mohlalefi Seitlheko with whom he has been incarcerated since 2017.
Molati argued that Hungwe is presiding over two cases (including that of the murder of the late Maaparankoe Mahao) against his client (Kamoli) and fears that he could, through “human error”, confuse the witness statements and use one to the other court, thus seeking his recusal from the current case.
“When you are sitting in this court, out of human error we are fully aware that His Lordship made some certain remarks which related to accused number one in that case, being accused number three in this case and those remarks were attributed to the first accused (Kamoli) in this case.
“It is an issue of human error; we are not saying by that reference, his Lordship was harbouring bad intentions towards us. It is highly likely that because the witness testifying in that case is the same witness testifying in this case before you,” he said.
He cited a judgment brought down on November 12, 2021 by the Appeal Court in a case of DPP against Ramoepana where he said the court made an observation that Ramoepana was charged with murder of commander of Lesotho Defence Force.
“When a person who is not in Lesotho reads that judgment it clearly appears that in fact Ramoepana is facing a case of murder which is a big error because as at the time the appeal court was delivering that judgment, the DPP had long withdrawn the charge of murder against Ramoepana,” Molati added.
“I submit that it is possible, out of human error, that something that appears in the Mahao murder trial will come to feature in this case. We are not saying it is possible that these things will happen; we are saying it is already happening even before the trial could start.
“May his Lordship reflect in these issues to say the litigant is not attacking my integrity but highlighting the salient features of the criminal justice system that I can clearly see that I cannot be able to divorce my mind from.
“It is possible for a judge to make a credibility finding that is positive in the first case on a particular witness and return to make a negative credibility find in the next case with the very same witness,” he said.
Meanwhile, Abrahams said the high watermarks of Kamoli’s motion is based on the six grounds that he cited as unintelligible on which he premises his apprehension of bias and that Hungwe will not apply a partial mind to bear on the adjudication of the matter.
“The genesis of the applicant’s motion finds itself in the opportunistic shallow political speech he made on the 16th prior to our adjournment.
“This applicant made a political speech and in that speech he referenced the first ground on which he places his reliant. We demonstrate solely the mootness of it and the mere fact that the applicant, as much as he tries to argue before his Lordship that he places no reliance thereon he very much places his reliance thereon.
“It is a central base to his submissions for his Lordship’s recusal. He says he does not seek determination on the old facts but new facts and with respect, that’s a blatant lie,” he said, reading through Kamoli’s application.
“The first meeting with his Lordship presiding was not harmonious. He indicated that he has either been told or heard about me. The record of the court is replete with evidence or the facts that the meeting was not harmonious that a presiding officer was going to sit on a case involving an accused when he meets for the first time.
“I submit that when the recent developments are looked at in the light of the fact that the earlier his Lordship has stated that he knows about my attitude I fear that I will not get a fair trial,” he said.
He debated the matter of the use of words that Kamoli specifically said Hungwe was going to fix him when he made his “political speech”.
“Those are the words that he used, he didn’t use the words that his Lordship knows about his attitude,” he said.
Justice Hungwe will give his ruling on the matter on April 4, 2022.