Treason and murder-accused former army commander, Lieutenant General Tlali Kamoli, and his co-accused soldiers have been handed a boost by Chief Justice Sakoane Sakoane in their bid for freedom.
This after Justice Sakoane last Thursday questioned why they were still detained without being tried for treason and the murder of Police Sub-Inspector Mokheseng Ramahloko in apparent violation of the Criminal Procedure and Evidence Act which states that suspects should be tried within six months of their indictment or be freed.
Acting on the chief justice’s remarks, Lt-Gen Kamoli and his co-accused lawyers on Friday announced their intention to file a High Court application for their release. They intend to file the application on 26 January 2021. The application will be heard by Botswana Judge Onkemetse Tshosa and it will be premised on the grounds that they have not been tried within a reasonable time.
They intend to invoke section 141 of the Criminal Procedure and Evidence Act which states that, “every person committed for trial or sentence whom the Director of Public Prosecutions (DPP) has decided to prosecute before the High Court shall be brought to trial at the first session of that court for the trial of criminal cases held after the date of commitment”.
The same section further states that the suspect (s) “shall be admitted to bail if 31 days have elapsed between the date of commitment and the time of holding such sessions”.
“If the person committed for trial or sentence before the High Court is not brought to trial at the first session of that court held after the expiry of six months from the date of his commitment and has not previously been removed for trial elsewhere, he shall be discharged from his imprisonment for the offence in respect of which he has been committed,” the act further states.
It is on this basis that Lt-Gen Kamoli and others who have been in detention since their arrest in 2017 are intending to apply for freedom.
His co-accused are Captain Litekanyo Nyakane and Lance Corporals Motloheloa Ntsane and Leutsoa Motsieloa. They were first indicted in January 2018 for the murder of Sub-Inspector Ramahloko which occurred during the attempted coup against the first government of former Prime Minister Thomas Thabane on 30 August 2014.
The DPP, Advocate Hlalefang Motinyane, later amended the charge sheet to include a treason charge. She also moved to join politicians Mothetjoa Metsing and Selibe Mochoboroane to the trial.
However, the treason trial failed to proceed after the duo filed a 25 February 2020 constitutional application to stop the state from trying them on the grounds that clause 10 of an October 2018 SADC-brokered government-opposition agreement shielded them and other politicians from prosecution until after the implementation of the multi-sector reforms.
This was despite that the Constitutional Court had struck down clause 10 in its November 2018 judgement passed after the late Police Constable (PC) Mokalekale Khetheng’s father, Thabo Khetheng, petitioned the court to declare it unconstitutional saying self-serving agreements between politicians could not outstrip the constitution. PC Khetheng was killed by fellow police officers on 26 March 2016.
Messrs Metsing and Mochoboroane lost their application on 12 November 2020 when the Constitutional Court upheld its November 2018 decision to nullify clause 10. The court ruled that the clause could only become legally binding in Lesotho if it was domesticated into local law through an act of parliament.
However, the duo immediately filed a fresh application in the High Court to stop the state from trying them. This time, they argued that they could not be joined to a case that was already in progress. They also argued that they could not be tried in the High Court without first being remanded in the magistrates’ court as demanded by the Criminal Procedure and Evidence Act. Their application is pending before Chief Justice Sakoane Sakoane who heard it to finality last week and reserved judgement to a date yet to be announced.
While hearing Messrs Metsing and Mochoboroane’s application last Thursday, Justice Sakoane asked why Lt-Gen Kamoli and others were still kept in prison without being tried for treason and the murder of Sub-Inspector Ramahloko.
He asked why their lawyers had not applied for discharge in terms of section 141 of the Criminal Procedure and Evidence Act.
“The law is very clear. Section 141 of the Criminal Procedure and Evidence Act,” Justice Sakoane said.
“If the processes of this court failed them, were they not have been released within six months? We have to apply the law. The law of this country is that if the accused is not brought to trial within the first session of this court, they should be released from prison. It says let them walk because you cannot try them. They should go back home,” Justice Sakoane said.
Boosted by the chief justice’s remarks, Lt-Gen Kamoli and his co-accused’s lawyers did not waste any time before acting on his advice.
On Friday one of their lawyers, Advocate Lepeli Molapo, told Justice Tshosa that they intended to apply for the discharge of their clients.
“The defence is applying for discharge of all accused persons in terms of section 141 of the Criminal Procedure and Evidence Act. There is no justification which warrants the postponements of their case.
“Those two people (Metsing and Mochoboroane) who the crown says it intends to join are not before the court and it is unfair that the accused’s trial should be postponed because of people we do not know,” Adv Molapo submitted.
Crown Counsel, Adv Shaun Abrahams, then invited Adv Molapo to make a substantive application for his clients’ release in order for the prosecution to effectively oppose it. Adv Molapo agreed to the suggestion.
Justice Tshosa postponed the matter to 26 January 2021 on which date Lt-Gen Kamoli and others will apply for release.
Even if they were to be released from treason and Sub-Inspector Ramahloko trial, they could still remain behind bars as they face several other charges including the June 2015 murder of army commander, Lt-Gen Maaparankoe Mahao.
They have filed several other application for discharge and bail since their arrest in 2017.