Mohalenyane Phakela
ELEVEN soldiers currently facing mutiny charges have accused army commander, Mojalefa Letsoela, of launching irregular proceedings against them to ensure that they are convicted at all costs.
The 11 argue that “in the whole history of mankind and Lesotho’s jurisprudence,” they have never heard of anyone being charged with mutiny for exercising their rights to sue for appropriate remedies in the courts of law.
They have therefore launched a High Court application to nullify the court martial proceedings instituted against them on Lieutenant General Letsoela’s orders.
The 11 were hauled before a Lesotho Defence Force (LDF) Board of Inquiry (BOI) to determine if they had mutinied by suing Lt-Gen Letsoela for a staggering M32 million for their alleged torture and unlawful arrests by fellow soldiers in 2014.
They were allegedly subjected to torture and degrading treatment by their army colleagues during and after the 30 August 2014 attempted coup against the first government of former Prime Minister Thomas Thabane.
Lt-Gen Letsoela is only being sued in his capacity as army commander for the atrocities which were allegedly committed by soldiers then under the command of former LDF chief, Tlali Kamoli.
They had teamed up with five others to sue Lt-Gen Letsoela in June 2021.
The 16 plaintiffs are Tumelo Maja, Ngoliso Majara, Khorai Ralitlemo, Motšoene Motšoene, Thabiso Motsieloa, Thabang Lepota, Peter Mokhothu, Selebalo Sejake, Lintle Rantuba, Lehlohonolo Bolofo, Ntai Mosaku, Litšitso Mahase, Mokhapi Kelane, Mojalefa Mosakeng, Ntabejane Kanono and Lehloa Ramotšo.
However, only 11 of the applicants were slapped with “show cause” letters because they are still serving in the army. Another two of their co-applicants distanced themselves from the lawsuit. The 11 who were subsequently suspended in July 2021 and hauled before the LDF BOI are Captain Mokhothu, Major Ramotso, Sergeant Majara, Sergeant Lepota, Lance Corporal Motsieloa, Sergeant Kelane, Corporal Bolofo, Sergeant Sejake, Corporal Mahase, Corporal Ralitlemo and Private Mosaku.
In their latest application filed in the High Court this week, the 11 argue that the BOI proceedings are a “nullity” in that their compensation demands are beyond the Court Martial’s jurisdiction hence why they did not seek internal LDF remedies for their alleged torture and arrests.
They also argue that the BOI has denied them access to witness statements and legal representation, thus denying them their rights.
“The applicants were not given a hearing before the Board of Inquiry was established,” Capt Mokhothu states in his founding affidavit.
“In the whole history of mankind and Lesotho’s jurisprudence, if not the whole world, no person was ever charged for mutiny on the grounds that he accessed legal services and exercised the right to access a court of competent jurisdiction for appropriate redress. The BOI was created on reasons that are not cognisable in law.
“The applicants were served with defective charges but not given the witness statements and the witnesses called to the BOI are not giving evidence of facts but formulate opinions as to the legality and/or otherwise of the applicants’ conduct of accessing legal representation and the court. (The) failure to furnish witness statements alone renders subsequent proceedings a nullity.
“The applicants are perpetually denied legal representatives in the BOI proceedings and the right to cross-examine the LDF witnesses. The applicants have already raised a point of lack of jurisdiction of the BOI – a point which has been arbitrarily dismissed.”
Capt Mokhothu further argues that the BOI’s proceedings should be nullified on grounds of jurisdiction. He also accused the tribunal of threatening him and his co-applicants’ liberty and dignity.
“It is no secret that the whole target of the tribunal is the subsequent arrest of the applicants on the alleged grounds that they committed mutiny by accessing legal services and approached the courts of law for relief. The allegation of mutiny against the applicants, let alone the establishment of the Board and the trying of applicants in that Board poses a severe threat to applicants’ dignity, reputation, liberty and fair trial rights.
“The danger to the applicants’ liberty is eminent since it is clear that the Board is going to maliciously find applicants guilty of mutiny and advocate for our arrests to the prejudice of our rights to liberty and lives as the life sentence is the only punishment for mutiny,” Capt Mokhothu states.
He argues that there has been a plethora of irregularities which have already been committed by the BOI with the intention of finding them guilty.
He states that they were not furnished with copies of the terms of reference of the BOI although they needed them to fully prepare their defence. He said they were only told the terms verbally.
“I aver that we asked for a physical copy (of the terms of reference) but were denied by the Board on the grounds that the terms were exclusively for the Board. We were even refused to see the convening order which authorised the Board. It is important that we be furnished with the terms of reference to allow us to intervene and object when the board is acting beyond its mandate as it has already done.
“Secondly, when the Board commenced, we were informed that there would only be two witnesses who would testify on behalf of the Board, namely, Lieutenant Colonel Mosakeng and Military Intelligence Director Colonel Serame Phosholi. Following the submissions by Lt-Col Mosakeng and Col Phosholi, the Board unilaterally, without informing us of the reasons for doing so, called a further four witnesses to testify. I aver that this is not a mistake on the part of the Board as its first two witnesses failed to give evidence that would point to mutinous conduct.
“The Board is further failing to uphold the rules of evidence by allowing its witnesses to testify about rumours and opinions. I aver that Col Phosholi testified that there are rumours that we held meetings with prominent politicians without presenting any evidence in that regard. This is highly prejudicial as it means that we may be arrested, charged and detained on the basis of rumours.
“I aver that throughout the proceedings in the Board, it has never held an impartial position in that it constantly guides its witnesses at arriving at the conclusion that we are or were mutinous. The Board further precludes us from asking the witnesses questions after they have given evidence.”
Capt Mokhothu also accused the BOI of refusing to defer its proceedings to allow Lance Corporal Motsieloa to attend to his sick father who subsequently died.
“I aver that I hold a reasonable suspicion or apprehension that the Board of Inquiry is a ruse employed by the first respondent (Lt-Gen Letsoela) to have us arrested and detained indefinitely,” Capt Mokhothu states.
The 11 soldiers therefore want an interim order staying the BOI proceedings until their application has been finalised by the High Court.
In terms of final reliefs, they want “the purported unterminated proceedings before the LDF Board of Inquiry to be reviewed and set aside as a nullity on grounds of gross irregularities.
“That the proceedings be stayed permanently on grounds of gross irregularities, violation of the fair procedure and lack of jurisdiction.”
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