Maseru – The Southern African Development Community (SADC) facilitator in Lesotho has refused to give the government a full record of proceedings of its inquiry into the June 2015 murder of army commander Lieutenant-General Maaparankoe Mahao.
This has raised the ire of Prime Minister Moeketsi Majoro’s government.
The full transcript of the Justice Mphaphi Phumaphi-led inquiry was requested by former army commander Tlali Kamoli to “assist” him prepare his defence against charges that he ordered Lt-Gen Mahao’s murder.
But former South African Deputy Chief Justice Dikgang Moseneke, who heads the SADC facilitation team to Lesotho on behalf of South African President Cyril Ramaphosa, has advised against making the full report available as some testimony was presented in camera.
Judge Moseneke’s recommendation is based on his insistence that all high-profile trials, including Kamoli’s, must be stopped until after the completion of the reforms recommended by Sadc in 2016 to achieve lasting peace and stability in Lesotho.
However, in a major setback for Lt-Gen Kamoli and his co-accused, the High Court ordered their trial for their involvement in the killing of Lt-Gen Mahao to proceed, despite the government’s failure to give them the full SADC inquiry report.
The trial is now slated to run from May 27 to June 4, 2021.
Justice Moseneke’s advice had put the government in the unenviable position of having to unwillingly violate a July 2020 Lesotho High Court order to handover the full record of the SADC inquiry proceedings. This because it could only do so after receiving it from SADC.
The regional bloc had in 2016 given the then Pakalitha Mosisili-led government a summarised report of the proceedings instead of the full report which Lt-Gen Kamoli is requesting.
Foreign Affairs and International Relations principal secretary Retired Colonel Tanki Mothae this week explained to the High Court that the government had failed to obtain the full record of the proceedings from Sadc when Justice Charles Hungwe summoned him to explain why Lt-Gen Kamoli was still to get the full report long after his July 2020 ruling that it be done.
Rtd-Col Mothae reported to the court that the government had unsuccessfully tried to get the report from Sadc after Justice Moseneke’s recommendation that it be withheld. He said the Lesotho government was therefore unhappy with Sadc and Judge Moseneke’s stance.
Justice Moseneke’s reasoning, the report of the full proceedings contains sensitive information which could scuttle the ongoing multi-sector reforms process; therefore, it must not be released. Instead of releasing it now, it is best to do so after the full implementation of the reforms, about eight to 12 months from now, he argues.
Justice Moseneke has been pushing for the deferment of all the high-profile trials ostensibly to create “an all-inclusive environment for the conclusion of the reforms process”. The stance was this week seized by Lt-Gen Kamoli and others to try and push the court to defer their Mahao murder trial until after the implementation of the reforms. Lt-Gen Kamoli and others are accused of the 25 June 2015 murder of then army commander Lt-Gen Mahao.
Justice Moseneke’s stance is not new. The Constitutional Court rejected his previous 2019 moves, saying Sadc decisions were only binding in Lesotho if they had been domesticated into local law through an act of parliament.
Again, this week, Justice Hungwe refused to grant Lt-Gen Kamoli and others’ High Court application to defer their trials until after the implementation of the reforms as per Justice Moseneke’s exhortations. Justice Hungwe issued his ruling after a spirited explanation by state prosecutor Shaun Abrahams that Lt-Gen Kamoli and accomplices’ failure to acquire the full record of the Sadc proceedings would not in any way prejudice their trials.
Lt-Gen Kamoli and accomplices have been fighting tooth and nail to sabotage their trials from proceeding. Instead they have given the impression that they are hoping for a political solution in which a new sympathetic government emerges and frees them without having them answer to the substantive charges they are facing. Justice Moseneke’s plan has therefore apparently played into their script.
Justice Moseneke’s position to stop all the high-profile trials is fully explained in a 14 December 2020 letter to Sadc executive secretary, Stergomena Lawrence Tax which Rtd Col Mothae made reference to in the High Court this week.
Rtd Col Mothae said the government was unhappy with Sadc’s refusal to handover the full proceedings of its inquiry.
Lt-Gen Kamoli and accomplices had applied to Justice Hungwe this week to stop the murder trial until after the implementation of the reforms when they would have been furnished with the full proceedings of the Phumaphi Commission report as per Judge Moseneke’s recommendation. They still argued that they needed the full Sadc report to prepare their defence.
Justice Hungwe had in July 2020 ordered that they be furnished with the complete record of the Phumaphi Commission of Inquiry into the murder of Lt-Gen Mahao as per their request.
Although the Phumaphi Commission report was made public after it was given to then premier Mosisili in 2016, Lt-Gen Kamoli and his co-accused’s lawyers requested the entire record of proceedings of the inquiry, including evidence given in camera. They said they needed it to effectively prepare for their clients’ defence.
Lt-Gen Kamoli’s co-accused are Captain Litekanyo Nyakane, Captain Haleo Makara, Sergeant Lekhooa Moepi, Sergeant Motsamai Fako, Corporal Marasi ‘Moleli, Corporal Motšoane Machai, Corporal Mohlalefi Seitlheko and Corporal Tšitso Ramoholi.
Apart from the murder charge, they are further accused of the attempted murder of Lt-Gen Mahao’s nephews, Mahao Mahao and Mabilikoe Leuta, after they fired shots at Lt-Gen Mahao’s vehicle in which they had been passengers.
They are also charged with malicious damage to property arising from the shooting of Lt-Gen Mahao’s white Nissan half-truck.
Lt-Gen Kamoli is further accused of stealing Lt-Gen Mahao’s 9mm pistol and a Samsung Galaxy mobile phone.
All the charges are in line with the recommendations of the Phumaphi Commission report.