On Friday 15 April 2016 the Lesotho Court of Appeal heard arguments on a challenge by 23 members of the Lesotho Defence Force (LDF) to decisions relating to their arrests and detention and the Minister of Defence’s decision to convene a court martial in the case of Mareka and 22 Others v the Commander of the Lesotho Defence Force and Others.
From May 2015, a number of soldiers were apprehended and detained by the LDF. During this time Lt General Mahao (the former commander of the LDF) was shot and killed by members of the LDF. The detained soldiers, together with the late Lt General Mahao were subsequently accused of having plotted a mutiny. In the context of this crisis, the Lesotho government invited the Southern Africa Development Community (SADC) to intervene. SADC and the Lesotho government set up an independent Commission of Inquiry to review the investigations into the mutiny plot allegations and investigate Lt General Mahao’s killing. The applicants in the Mareka case sought to cooperate with the Commission of Inquiry. While the Commission commenced its work, the LDF continued to detain the applicants under closed arrest and convened a court martial with a prosecutorial team that included parties alleged to be victims of the mutiny plot. The applicants were prevented from participating in the Commission proceedings.
The applicants brought a legal challenge to their arrests and detention and to the decision to convene the court martial.
In the High Court:
In the High Court, Makara J focussed on the decision to hold the soldiers under “closed arrest”- as opposed to “open arrest”, a form of military bail. On 5 October 2015, the High Court held that the soldiers’ closed arrest was unlawful. The Court dismissed the remainder of the applicants’ prayers. The applicants appealed against the High Court’s dismissal of those prayers it declined to grant. The state respondents, including the LDF commander and the Minister of Defence, cross-appealed the order declaring the closed arrest unlawful.
Since the conclusion of the High Court proceedings, two contempt applications were brought against the LDF Commander for failure to release the soldiers on open arrest. Most of the applicants (appellants) remain in detention.
The Commission has also since concluded its proceedings and a redacted form of its report has been placed before Parliament. The Commission’s findings include that some of the mutiny-accused have been tortured in detention and that “the alleged mutiny might be a fabrication just to punish those officers who celebrated the appointment of [Lt General] Mahao as Commander of the LDF.” In its recommendations, the Commission stated that the “whole case of mutiny [is] highly suspect.”
In the Court of Appeal:
Arguments were heard in the Court of Appeal before Acting Judge President Farlam, and Acting Justices Louw and Masunda.
Advocate Anna-Marie De Vos SC, for the appellant soldiers, argued that the Minister of Defence’s decision to convene the court martial was unreasonable, arbitrary and irrational and should be set aside on review. She argued that the unreasonableness of the decision must be assessed in the context where the credibility of the investigations into the alleged mutiny plot had been seriously called into question by both SADC and the Lesotho Prime Minister in setting up the Commission. Additional factors, such as the manner of the soldiers’ arrest, the decision to keep them under closed arrest, and the irregular constitution of the court martial, further symptomized the unreasonableness of the decision. Adv De Vos emphasised that the soldiers’ argument was not that the court martial should never be convened but that no reasonable person would have elected for the court martial and Commission proceedings to run concurrently in the context: the Minister had the option to delay a decision to convene the court martial until the Commission concluded its independent review of the investigations into the soldiers’ conduct.
Farlam AJP questioned whether the appellants would have been released from detention if the Minister had postponed the convening of the court martial pending the Commission’s outcome. Following some debate, Adv De Vos submitted that while this hypothetical scenario was not a consideration that Minister had raised to justify his decision, the LDF Act and Regulations nevertheless permitted the soldiers’ ongoing detention under open or closed arrest during an investigatory period.
Finally Adv De Vos argued that, in the event the Court does not agree that the Minster’s decisions be set aside, the appellants should be released on open arrest. The law permits closed arrest only under certain conditions and the decision to hold the soldiers under closed arrest had been made without considering their individual cases or allowing them to be heard on the issue.
Adv Teele KC for the state respondents argued that the evidence before the Court does not support a finding that the decisions the soldiers challenge were unlawful or unreasonable. He argued further that the Court should not second guess these decisions as they concern matters of national security. Adv Teele submitted that the soldiers had not provided any evidence that they would be prejudiced by the concurrent running of the Commission and court martial processes.
On the question of open or closed arrest, Adv Teele argued that the deciding officer could choose whether to detain arrested soldiers under open or closed arrest. The Court put to Adv Teele that previous cases had determined that open arrest was the default position. Justices Farlam and Louw debated with Adv Teele whether the legal effect of the High Court order (that the closed arrest was unlawful) required the soldiers’ immediate release. Adv Teele submitted that the legal effect was merely that a fresh decision could be made immediately to place the soldiers under close arrest; they needn’t be released.
Following further exchange, the Court questioned whether the state respondents persisted with their cross appeal to argue that the soldiers need not by law be given an opportunity to be heard on their closed arrest. Adv Teele submitted that the respondents now persist in the cross appeal on a different basis, that there were no particular averments in the founding papers that the soldiers had not been given an opportunity to be heard on the issue of their closed arrest.
The Court indicated its need to consider what it said was a “serious judgment”. Judgment was reserved until 29 April 2016.