Judge’s expired contract hinders Kamoli case

Mohloai Mpesi

The expiration of a judge’s contract in the High Court of Lesotho has led to a delay in the continuation of a murder case of the late former army commander Lieutenant-General Maaparankoe Mahao where another former army chief Lieutenant-General Tlali Kamoli and nine others stand accused.

The Zimbabwean-born judge Justice Charles Hungwe’s two-year contract inked in January 2019 came to end last Sunday (October 31, 2021). Hungwe was assigned to preside over a number of explosive high profile cases in the country. The decision had been reached after it had appeared that the cases were sensitive to the point of polarity of public view along political party lines so that there was a general feeling that local judges might be viewed through those lenses should they have presided over same.

Therefore, Hungwe was among the foreign judges commissioned by the Judicial Service Commission (JSC) with fiscal support of the European Union (EU) and the United Nation Development Fund (UNDP).  

Chief Justice Sakoane Sakoane broke the news earlier this week where he told the court that Justice Hungwe no longer had a contract, adding that his efforts to have the contract renewed were yet to yield anything fruitful.

“You may be aware that I am not presiding in this trial; a judge to preside in this trial is having a big jurisdiction challenge on the basis of a contract that expired on October 31, 2021,” he said.

“As matters stand, he doesn’t have any contract to continue presiding in this matter. According to section 129 (5) of the Constitution of the Imperative; a judge either permanent or acting, whose time of appointment comes to an end before he or she concludes the business of the court is obligated to continue to choose any outstanding business to deliver,” he said.

He continued that Hungwe is able and willing to continue to hear the trial to finality, but that the problem arose when contractual provisions governing his financial expectations could not be duly honoured.

“I, as head of the judiciary have endeavoured to do all that is possible under my command that this does not come to this but as matters stand, my efforts have not yielded any success. The judiciary does not hold the purse or the sword, the sum that the judiciary appropriated comes from parliament and that says if parliament has under-budgeted there is nothing that we can do under the circumstances,” he said.

“In my discharge as head of the judiciary, I then deemed it necessary that all counsels should come to appear before me in open court so that I can convey this news. I am doing this as a matter of public record because I don’t want any misrepresentations.

“You are all entitled to opinion but you are not entitled to the facts. The accused as I understand, are facing capital offences in this country, the victims are entitled to the truth, nothing less than the truth,” he said.

He added that, “We are in an unchartered territory; I did not anticipate that I would be doing what I am doing now. We must understand that the presiding judge in this trial could not be here today because once his contract is worn-out, the linkage is broken.   

“If this was not a criminal trial, I could have called you into chambers, but because it is a criminal trial, for the benefit of the accused, they should hear it from the horse’s mouth,” he said. 

Meanwhile, the Director of Public Prosecutions (DPP) Hlalefang Motinyane told the court that she had already communicated with Attorney General Rapelang Motsieloa to table the matter before Cabinet to consider renewing the contract, failing which, the matter should be moved before a different judge.

“Where a judicial officer is unable to complete a case due to any supervening circumstances such as the one before us where a learned judge’s contract ought to be renewed, naturally a fellow judge would commence the case and that would embroil recalling witnesses who have already testified to adjust fresh evidence,” she said.

“Should there not be any remote prospect of Justice to proceed with the matter; the matter should be moved to a different judge,” she continued.

Sakoane further quizzed Motinyane, “What you are saying is the end tail of the process, I just want to know, these being the facts, if you accept that they are facts in a parted matter, what do you propose should be done?

She answered that, “Plan A is for this matter to be postponed to a reasonable time for Judicial Service to be abled. This court hired a foreign judge in the matter because the judges are already overloaded with work and other reasons why we had a judge from outside the country,” she said.

“I communicated with Attorney General to take the matter before Cabinet to consider renewing the contract. We will work on the matter to find solution to it,” she said.