DPP wants foreign judge

MASERU – THE Director of Public Prosecutions (DPP), Advocate Hlalefang Motinyane, is not just pushing for Chief Justice Sakoana Sakoane to recuse himself from Lieutenant General Tlali Kamoli's treason case.
She now wants a foreign judge to preside over the matter.

Advocate Motinyane disclosed this in papers filed in the Court of Appeal last week.
Lt Gen Kamoli, three other soldiers and two prominent politicians, have been charged with treason after the army attacked the State House and police stations on August 30, 2014.

The politicians are Mothetjoa Metsing, leader of the Lesotho Congress for Democracy (LCD) and the Movement for Economic Change (MEC) leader, Selibe Mochoboroane.
They face the death sentence or a lengthy prison term if convicted.

In her papers, Advocate Motinyane, said Chief Justice Sakoane had demonstrated that he would be biased if he were to adjudicate on the matter.
She said Chief Justice Sakoane's refusal to recuse himself from adjudicating the trial of Lt Gen Kamoli and others“should be set aside and the case be allocated to a foreign judge for adjudication”.

She said the conduct of Justice Sakoane in court“rationally amounts to biasness and he will not bring an impartial mind to bear on the hearing of the trial”.
What irked the DPP is that Justice Sakoane kicked her appointed foreign lead prosecutor, Advocate Shaun Abrahams, from the case after finding that he wanted to appear in court only when it pleased him.

He said Advocate Motinyane's allegations that he was biased against the crown were raised when he was disciplining the crown on their behaviour of postponing cases without giving clear reasons to the court and when he sought clarification he was then accused of bias.

Justice Sakoane said the DPP had failed to perform her duties to inform the court about the absence of the lead prosecutor, Advocate Shaun Abrahams, during the continuation of the trial.
Advocate Motinyane had told the court that Advocate Abrahams had informed her that he was going to be away in December but never said anything until she came up with an application for postponement on the day of the trial, the court found.

“At no stage did the DPP and Abrahams inform the court nor communicate with the defence lawyers that Abrahams would not be able to come to court yet they knew about it since December,” Justice Sakoane said.

In her appeal papers, Advocate Motinyane said on December 13, 2021, Advocate Abrahams informed the court about his unavailability in February 2022 which the court suggested that Advocate Naki Nku or Advocate Christopher Lephuthing should proceed with the matter.

“After the court suggested dates in January 2022, Advocate Abrahams immediately informed the court of his unavailability and explained that he would consult with me to which the court immediately acquiesced,” she said.

She said when the court imposed the dates of 10 to 20 January, it was fully aware of Advocate Abrahams having prior professional commitments on the scheduled dates.

“As such, the court double-booked Advocate Abrahams when imposing the dates of 10 to 20 January,” she said.

She said at his request and Advocate Nku's, Advocate Abrahams returned to Lesotho to join the prosecution team to lead the prosecution.
Motinyane said the court could not be the architect of the double-booking and then use its own creation as a yardstick to subject Advocate Abrahams to a procedurally irregular and prejudicial enquiry.

She accused Justice Sakoane of“summarily sanctioning Advocate Abrahams by unilaterally denying him the right to appear in the trial”.
She argued that it was easily discernable from the record that Advocate Abrahams did not abandon the case.

“The court instead erred and materially misdirected itself in finding that Advocate Abrahams had abandoned the matter, when in fact it had double-booked Abrahams,” she said.

She said she had on balance of probabilities, made out a case demonstrating and convincing evidence that Justice Sakoane will not bring an impartial mind to bear on Lt Gen Kamoli's trial and has dislodged the presumption in favour of him in the High Court's fairness and impartiality.

Motinyane said the interests of justice would be brought into disrepute should Justice Sakoane proceed with the adjudication of the trial.
She said the absence of procedural fairness, even-handedness and objectivity in the conducting of the enquiry under section 12(4) of the speedy Court Trail Act in itself constitutes bias.

The Speedy Court Trails Act, she said, do not make provisions for the absolute and complete suspension of the prosecutor to appear in court or to appear in a given matter.

“The court summarily, arbitrarily and irrationally rejected Advocate Abrahams' appearance in the matter, in the process expelling him from the matter altogether,” she said.

“I submit that the court erred and materially misdirected itself in finding that the loss of Advocate Abrahams for the crown for reasons of enforcement of the Speedy Court Trial Act, does not constitute bias,” she said.

'Malimpho Majoro

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