A counsel for the two politicians – Lesotho Congress for Democracy (LCD) Leader and former Deputy-Prime Minister Mothetjoa Metsing and the Minister of Development Planning Selibe Mochoboroane, who is also Leader of the Movement for Economic Change (MEC) – has questioned the legality of his clients’ joinder in the on-going murder trial of former Army Commander Lieutenant-General Tlali Kamoli.
Advocate Motia Teele told the court this week that it is impracticable to join the two politicians in the case while an indictment charging the four soldiers had already been made in 2018.
The matter is before Chief Justice Sakoane Sakoane while the Crown was represented by advocate Christopher Lephuthing and advocate Nnaki Nku.
The duo was set to join the former army commander Lieutenant General Tlali Kamoli, Motloheloa Ntsane, Litekanyo Nyakane and Motsieloa concerning the 2014 incidents where the Lesotho Defence Force paraded the Lesotho Mounted Police Service headquarters and allegedly gunned one police officer, Mokheseng Ramahloko.
Teele contended that the Director for Public Prosecution (DPP) Advocate Hlalefang Motinyane’s procedure to twine his clients in the already proceeding trial was not correct, charging that they could not join in the murder indictment of 2018 while they are accused of treason.
“She misconstrued the provisions of 144 to use them as the reason or mechanic for joinder when the issue of joinder is not dealt with under section 140 to the extent that it has been a misconstruction of the provisions and the manner in which they should be operationalized. That would be the irregularities in the context of the powers exercised section under 144,” Teele said.
He added that Section 144 is being used in the matter to circumvent the absence of provisions concerning joinder under 140.
“What she is doing effects the joinder of this applicant in the indictment, if she uses the provision of 144 for a purpose other than which she intended then she is abusing court process. She is misconstruing the proceedings of 144 to use it as machinery for joinder.
“It’s a separate issue but arises from an examination of what rights and powers she had, taking note that there was already an indictment pending,” he said.
He continued that in her own words she said, “I am using section 144 in order to join these persons as part and parcel of the indictment scheduled 174. Meaning this is the motive or the reason she exercised the power of 144 was to join them. You cannot use 144 to achieve that which is not achievable under 140,” he said.
He said according to Criminal Procedure and Evidence Act, the question arises as to what is the context, in which 140 may be applied in which he said the DPP failed to exercise her powers correctly.
“So it’s a fact that is relevant to a fact in issue, the fact that 140 is implicated is the fact that is relevant to a fact in issue or the legal issue that arises in 144. You may not isolate and deal with 144 without looking at how her powers would have been properly exercised in the context of Criminal Procedure and Evidence Act, then 144 becomes implicated in that extend,” said Teele.
Meanwhile, Chief Justice Sakoane quizzed if the matter does not raise a locus standi question.
“Doesn’t that raise a locus standi question? Because if someone is not before criminal court, then why would the court have to listen to that person? Because in a criminal court I should only listen to accused persons, if you say you are not an accused but then you want to attack an indictment which you say does not concern you, but where you say it concerns you but improperly then we will be asking whether you are before court properly,” he asked.
Teele responded that, “You are right that the issue of standing would then arise, but it would arise if it was raised as a substantive prayer in the notice of motion. One of the reasons why when you set out a notice of motion is to make sure that you are pleading within the competence of the court. But that is not the core for considering the matters that are relevant to the very fact that is the issue.
“Notice of motion outlines what is fact in issue and that fact does not arise in isolation, it arises in the context of factual background as well as legal background and it is part of the legal background that section 140 indicated. But we are not asking you in consequence that you should determine the section 140 which would contextually be dealt with under section 162, but we are saying it demonstrates that there has been a lack of understanding of how 144 should apply.
“If the issue has been raised as a free standing section 140 would be a challenge, but it is not a free standing section 140 the problem, it is section 140 which has its own factual and legal background and the tentacles of arguments touches upon the issues of the legal background,” he answered.
He further explained that the 2018 indictment was an indictment indicting Kamoli, Nyakane, Ntsane and Motsieloa, who were the accused persons and the indictment was murder and there was no other indictment.
“The indictment that took place in 2020 was wrong because we now have two indictments; the one before court trial charging for murder and that one made last year November when the amendment was made,”.
Sakoane asked the Crown whether they applied for an amendment before the resigned Acting Justice Onkemetse Tshosa and whether it was granted.
“The crown applied for substitution of the 2018 indictment that it should be withdrawn and be replaced by the one of 2021 and it was granted,” Nku said.
She continued that she had a discussion with the defence counsel representative, advocate Teele that would not be good to join the persons of such high profile.
“We negotiated with my learned friend advocate Teele outside the court premises that we should handle this matter of joinder of his clients in a different way regarding to their status and what it may mean as leaders of political parties and I was wrong to have engaged in such negotiations,” she said.