…as treason charges coerced on him
A detained soldier and murder suspect at Maseru Maximum Prison, Leutsoa Motsieloa demands a release after two treason charges were twined to his case.
Motsieloa applied to be released in his prayers in an application launched at the High Court of Lesotho on Tuesday this week where he was charged alongside the former army commander General Tlali Kamoli, Motloheloa Ntsane and Litekanyo Nyakane whereby their case was coiled with the treason charges against the Lesotho Congress for Democracy (LCD) leader Mothetjoa Metsing and the Movement for Economic Change (MEC) leader Selibe Mochoboroane.
In the application, Motsieloa indicates that since his incarceration of four years without a trial staged against him after he was denied a bail while in the process, more charges of two political parties added in January 2020 forcing him to stay more time in prison for treason charges that he says he was initially not charged with. He says his trial dates were ignored and pushed back in a matter before Judge Onkemetse Tshosa.
The first respondent in the application is the Director of Public Prosecution (DPP), second respondent as Metsing, third respondent is Mochoboroane, Kamoli as fourth, Ntsane and Nyakane as six and seven respectively.
“My trial rights as guaranteed by the constitution are being infringed by all involved in my trial and as such I seek constitutional remedy.
“Now, I am approaching a fourth year since my arrest and detention. I previously applied for bail that was refused by constitutional court of the land,” he said.
“My trial dates that were previously set were ignored and the trial got postponed in order to usher Metsing and Mochoboroane. The desire of the prosecution and inclination of the judge to have Metsing and Mochoboroane joined to my trial was the sole reason that my trial could not proceed on the scheduled dates. I do not see possibility of my trial commencing any time soon under the current session of court.
He further charges that he is authorised by law to be released after a month passed with his hearing date unmentioned as he went for commitment and holding session.
“I am advised by my attorney of record that and I verily believe the same advice to be true and correct that once I am committed to the High Court, the trial shall be held at the first session following my committal. The same trial goes further that if 31 days have elapsed between the date of commitment and holding of the session without the case set for hearing and I am entitled to be released.
‘I aver that my release on account of failure to prosecute a case at first session is statutorily compelled notwithstanding that I was denied a bail before as that was the case with me. Alternatively, I aver that 60 days have lapsed without my case being set for hearing, this happened while I was in custody therefore I am entitled to be released under dictates of section 4 of the Speedy Court Trial Act, 2002.
“I aver that my continued detention without trial is prejudice against myself and violates my constitutional right to trial within a reasonable time which is statutory defined under section 141 of the Criminal Procedure and Evidence Act of 1981 and or speedy Court trials Act, 2002.
“I aver that my continued detention is also against my right to fair trial and also is prejudice to me. The court ordered the indictment to be amended and to bring treason charges despite the fact that I have resisted the same and wanted to put evidence in opposition. The court, per incuriam and without benefit of full addressed by counsel, just invoked section 5 of Criminal Procedure and Evidence Act, 1981 the case of and ruled that the Crown have power to charge anyone at any stage.
“The distinguished features mentioned/ made about the case of R v. Mall and Others 1960 (1) SA 73 (N) were not correct. I was not given a chance to oppose the Crown application to ament the charges. I aver that there ought to be renege from its previous position and everyone affected a chance to oppose. I was ambushed by the Crown and the court entertained that ambush to my prejudice.
“The court, in admitting the new additional charges made a finding that I have not demonstrated prejudice and I avow that this finding was without basis as the court was not welcoming to Advocate Mafaesa address and neither was I given a chance to adduce evidence to demonstrate prejudice; in any event it was for prosecution to lack of prejudice,” he said.
Motsieloa further continued that, “I now proffer the following facts to demonstrate prejudice occasioned against me and addition of Mothetjoa Metsing and Selibe Mochoboroane to be added to my trial,” he said.
“Inclusion of Metsing and Mochoboroaene says I will have endured more time in jail. This kind of attitude is against the international, regional and national standards of conducting serious trial as the one we are faced with.
“It is worthy of mention that following my arrest, the Executive arm of government and SADC decided to appoint judges to specifically preside over our cases at European Union sponsored fee and financial incentives that comes with trial does not extend to me. I am financially prejudiced as I do not have money anymore to engage a counsel to raise my defences.
“The facade with which politicians in Lesotho decided to recruit judges outside Lesotho was that local judges could not dispense Justice due to political climate of Lesotho was so that different judges who operate on different roll will have more time to focus on our case but as matter stands I was only given less than 24 hours to answer a notice of motion running up to 100 pages or more.
“I could not meet with my counsel to answer the same due to time restrictions at Maseru prison. The judge justified the short period of time by suggesting that if advocates Teele KC and Abrahams could do it then my counsel should do the same. The clients of the two mentioned counsels are not in prison as I am and that judge did not consider despite being made aware. This attitude is suggestive that we are just going through the motions.
“The court was well aware that the case involving the indictment with additional charges with which prosecution unconventionally wanted to, and did thereby, introduce was sub judice and it was a matter that was yet to be argued. The court and prosecution swiftly acted to close argument for Metsing and Mochoboroane despite warning by Teele KC about that effect. I had instructed my counsel to make submissions on that case.
“The subterfuge of the government of Lesotho and cohorts sponsors was to the effect that best international practices will be implored to our trials but that is not the case be account of one or more of the following.
“It is constitutionally imperative that every accused person shall be afforded a fair hearing within a reasonable time by independent and impartial court. The constitution further guarantees that accused person shall be informed as a reasonably practicable and in adequate detail the nature of the offence charged.
“Further, accused shall be given adequate time and facilities for the preparation of his defence. It is not legal standard to bring new indictment and charges three years after I was committed the detention prejudice is on-going and will continue to be.
“I was charged with murder and committed to High Court for the same crime and was not at any given time given a charge of treason. I am now forced to stay more time in prison for the same reason that Mothejoa Metsing and Selibe Mochoboroane will have to be accorded their pre-trial rights unless the court is prepared to sweep the same under the carpet as it has done with me by ordering my counsel to answer the case of lis pendens brought by Metsing and Mochoboroane in a time space of hours.
Adding more to the fire, Motsieloa fears that he will compulsorily go through the considerable additional expense if he endures another lengthy pre-trial detention and a lengthy trial as he was not offered a chance to oppose the new charges.
“I am advised and I verily believe the same advice to be true and correct that the holding of a joint trial of persons separately indicted is either a purported exercise of a non-existent jurisdiction or constitutes an irregular of such a nature that it results per se in a failure of justice vitiating the proceedings entirely. The argument will be developed further during submissions.
“I was not given a hearing to object to amendment and inclusion of new charges as at that time I had to not receive counsel on ramifications of the introduced charges,” he said.
‘My health is weak and continues to be as a result of unhealthy conditions I am living under.
“The unmerited suffering I am subjected to as long as my detention remains in place is unbearable as it exposes me to irreparable harm. This exposes me to continuing mental psychological torture.
“In the premises set forth I humbly pray this honourable court may be pleased to grant me the relief prayed for as clearly indicted in my notice of motion,” he said.
Leutsoa is fourth accused alongside Kamoli, Nyakane and Ntsane in the murder case of the Police Sub-Inspector Monaheng Ramahloko who was slain by members of the army during an August 2014 military invasion of police stations to disarm them.