Justice at the Barrel of a Gun: A Court Diary from Lesotho

Salc : Annabel Raw

On Wednesday 16 September 2015, SALC attended a hearing in the Lesotho High Court in the matter of Mareka and 22 others v the Commander of the Lesotho Defence Force and Others. SALC provided technical assistance to the applicants’ legal team.

Lesotho has faced repeated political and security crises over the last years. Factions within the military have jostled for power, frequently transgressing lawful means. In August 2014, factions loyal to the previous army commander, General Kamoli, allegedly lead a coup attempt against President Thabane. The home of the then-Lesotho Defence Force (LDF) commander, Brigadier Maaparankoe Mahao was peppered with bullets. Following the intervention of the Southern Africa Development Community (SADC), early elections were held in February 2015, and Prime Minister Mosili was appointed. Things were relatively calm until May 2015 when General Kamoli was re-appointed as commander of the LDF. Shortly thereafter a large number of LDF members were apprehended on suspicion of plotting a mutiny. It was allegedly in the course of these“arrests” that Brigadier Mahao was shot and killed by members of the LDF.

It was in this context that SADC again intervened this year, at the request of Prime Minister Mosili. SADC conducted fact finding missions and made recommendations for reform and the institution of an independent Commission of Inquiry to investigate the killing of Brigadier Mahao and the alleged mutiny plot.

In the meanwhile, the “arrested” soldiers have remained under army detention, in the hands of their accusers. In a series of habeas corpus applications since May of this year, the detained soldiers have been brought to court in states of physical distress, alleging severe torture and abuse. They allege to have been repeatedly denied access to medical treatment, to their lawyers, and to their families.

In recent weeks the Commission has started its processes. The LDF have been fiercely resistant, threatening non-cooperation, demanding that the Commission abandon its terms of reference insofar as they relate to the mutiny plot allegations, withholding information, and withholding summons from the detainees whom the Commission sought to call as witnesses. Shortly after the Commission’s commencement, the soldiers were issued with a convening order indicating that the court martial would commence on 14 September, concurrently with the Commission. Further notices were given that they would remain under what is known as “close arrest” throughout.

It was in this context that the Mareka case was brought on an urgent basis by 23 of the LDF soldiers charged with plotting a mutiny. The applicant detainees challenged the decision of the army Commander and the Minister of Defence to convene a court martial to try them for the same issues that the Commission is examining and to continue to keep them in detention, preventing them from participating in the Commission proceedings. The army commander and Minister of Defence opposed the application, arguing that the court martial must proceed immediately irrespective of the Commission and that the applicants must remain in detention.

On Wednesday, Advocate Anna-Marie De Vos SC appeared for the applicants together with a team of Lesotho lawyers, Advocate Phoofolo KC, Advocate Lephuting, Advocate Ndebele and Attorneys Mr Mosotho and Mr Nthontho. Advocate Teele KC appeared for the LDF respondents. Prior to the launch of the urgent application, the attorneys for 22 of the applicants under close arrest sought on multiple occasions to consult with their clients and to have them depose to affidavits for the proceedings. The attorneys alleged that they were repeatedly denied access to their clients. Furthermore, the LDF Commander refused a formal request by the applicants’ attorneys to bring them to the court.

Three uniformed members of the LDF attended the hearing, including Colonel Sechele and Captain Hashatsi both who have been implicated in Mahao’s death, as well as the alleged kidnappings and abuses of which the LDF detainees have complained. The three LDF officers openly carried guns into the court room as the hearing got underway before Justice Molefi Makara.

Advocate De Vos, for the applicants, commenced her argument by explaining that the applicants’ case was not about seeking that the Commission should trump court martial proceedings, or that military offences should not be prosecuted or investigated. Instead, she argued, their case was that convening the court martial before the Commission is permitted to complete its work, in investigating the same subject matter as it relates to the mutiny-plot charges, is unreasonable, irrational, arbitrary and unlawful and should be set aside.

Advocate De Vos pointed out that in the LDF respondents’ own submissions to the Commission it has been argued that it is prejudicial for all parties involved to have concurrent proceedings underway on the same subject matter and involving the same parties. She illustrated that no prejudice would be sustained to the ability to prosecute the applicants if need be after the Commission completed its work.

The LDF respondents’ defence of the decision to convene the court martial during the Commission proceedings was that it wished to comply with the LDF Act’s requirement to prosecute military offences in good time. The defence, Advocate De Vos argued, was disingenuous as the LDF had already delayed in the prosecution of the detainees for a significant period beyond the statutory limits, before the decision to establish the Commission had even been taken. She argued that the Commission is in structure and form a process designed to be independent and to investigate facts relating to the court martial for the very reason that the independence of the LDF’s own investigatory process appeared compromised in a manner that threatened the stability of the state.

Advocate De Vos argued further that the ongoing detention of the mutiny-accused would not be justified if the decision to convene the court martial is set aside. In the alternative, she argued that the applicants should be released on “open arrest”, as no valid and individualized justifications had been made for their close arrest as required by law. In addition, keeping them under close arrest permitted the LDF to continue to frustrate their participation with the Commission and access to their legal representatives.

Advocate Teele argued that no decision by SADC could be construed as trumping the domestic obligation to prosecute military offences. He argued further that LDF members had no fair trial rights entrenched in the Constitution and were not permitted to raise issue with the convening and constitution of the court martial outside of processes internal to those proceedings. Advocate Teele sought in addition to raise that 22 of the applicants had not deposed to affidavits and were therefore not properly before the court.

Justice Makara emphasized his desire to consider the issues carefully and requested supplementary submissions on a point of law relating to harmonizing international legal obligations. He indicated that judgment would be delivered within two weeks considering the urgency of the matter.