Africa-Press – Lesotho. A group of eleven soldiers who the Lesotho Defence Force (LDF) command accused of mutiny have asked the High Court to nullify a Board of Inquiry set up to investigate their conduct.
LDF on July 9 accused the 11 soldiers of undermining the command when they teamed up to launch a court application against the institution. They were seeking millions in damages for torture, assault, and abduction they claim to have been subjected to under their colleagues.
They are: Captain Peter Mokhothu, Major Lehloa Ramots’o, Seargeants Ngoliso Majara, Thabang Lepota, Mohapi Kelane, Selebalo Sejake Lance Corporal Thabiso Motsieloa, Corporal Lehlohonolo Bofolo, Corporals Lits’itso Mahase, Khoarai Ralitlemo and Private Ntai Mosaki.
They said they had tried to engage relevant authorities on the matter in vain hence the decision to approach the courts. The LDF said when they met to stage their combined litigation, their act could be viewed as mutinous.
A Board of Inquiry was subsequently set up to investigate the matter but the soldiers say the board is rocked with gross irregularities and violation of the fair procedure principle.
They contend that their constitutional right of access to legal representation is being violated thereby threatening their rights of access to court of competent jurisdiction “which right is inseparably linked to the right to a fair trial.
” They want to High Court to intervene by reviewing the proceedings before the board.
They argue that its establishment is premised on an illegality and mala fide intents meant to unduly jail them for exercising their rights of access to legal services.
Captain Peter Mokhothu has deposed to an affidavit on behalf of the complainants and says, “In the whole history of mankind and Lesotho’s jurisprudence, if not the whole world, no person was ever charged for mutiny on the ground that that he/she accessed legal services and exercised the right of access to court of competent jurisdiction for appropriate redress.
Mokhothu says the board was created on reasons that are not recognisable in law and that they were not given a hearing before it was established to inquire into whether or not their liberties and the attendant dignity, and repute may not be violated on the grounds that they sued LDF.
He also states that they were served with defective charges and were never given witness statements while witnesses called to the board are not giving evidence of facts but rather formulating opinions as to the legality or otherwise of their conduct of accessing legal representatives.
According to the 11 soldiers, failure to furnish them with witness statements alone renders the whole proceedings a nullity. Mokhothu tells the court that they are denied legal representation in the board proceedings and right to cross examine LDF witnesses.
He also states that he raised points of lack of jurisdiction of the board but was dismissed. “The ruling of dismissal is a judgment in rem binding and affecting all the applicants since they are sued jointly as joint wrongdoers who allegedly pursued a common design purpose,” he argues.
Mokhothu maintains that the Board of Inquiry lacks jurisdiction for being established on an illegality (access of legal services), adding the target is to arrest them on grounds that they committed mutiny by accessing legal services.
“The allegation of mutiny itself 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, repute, liberty fair trial rights and livelihood,” he argues.
Things being right, the soldiers say the establishment of the board ought to have been preceded by a fair hearing and fair procedures. Failure to afford them a hearing they state renders the whole process a nullity and may be declared so by a competent court of law at any stage of the board.
“It calls for grave injustice and prejudice for the applicants to be tried by a board not established in line with the legal tenets.
The danger to the applicants’ liberty is imminent, since it is clear that the board is going to maliciously find applicants guilty of mutiny and advocate for our arrest to the prejudice of our rights to liberty and lives as the life sentence is the only punishment for mutiny,” he adds.
The ongoing Board of Inquiry complainants contend that it is coupled with a plethora of irregularities calculated at arriving at a decision that they be arrested and charged with mutiny.
In the affidavit, Mokhuthu lists numerous irregularities he identified in the conduct of the board: that they were informed of the terms of reference of the board verbally but were never furnished with copies of the said terms of reference in order to be able to diligently study contents so as to be fully abreast as to the scope of the investigation of the board and to seek legal advice.
When they sought physical copies, he says the board said the terms were exclusively for the board and not individuals to investigate. “I aver that we were even refused permission to see the convening order which authorised the board,” he notes.
According to the complainants, it is important that they be furnished with the terms of reference of the board in order to allow them to intervene and object when the board acts beyond its powers and mandate.
The Board’s decision to deprive them the terms of reference, they state, was calculated at embarrassing them in the proceedings and confer the board with limitless mandate and jurisdiction and ensuring that it arrives at an arbitrary recommendation that “we be charged and arrested for mutiny.
When the board commenced, the soldiers say they were informed that only Lieutanant Colonel Mosakeng and Military Intelligence Director Colonel Posholi would testify but that following their submissions, additional four witnesses were added without reasoning.
“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 establish mutinous conduct.
I aver that because of this, the board has embarked on a fishing expedition and has begun to call anyone and everyone it can to assist it to establish the charge of mutiny, Mokhothu states.
In its conduct, the board is also said to be failing to uphold the rules of evidence by allowing witnesses to testify about rumors and opinions. “I aver that Colonel Posholi testified that there are rumuors that we the applicants 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. “It is further alleged the board has never held an impartial position in that it constantly guides witnesses at arriving at the conclusion that we are mutinous while also precluding suspects from asking witnesses questions.
The 11 soldiers believe that the said Board of Inquiry is a means employed by the LDF Commander to have them arrested and detained indefinitely. They want the High Court to review and set it aside as nullity on grounds of gross irregularities. In the interim, they have asked that the uncompleted proceedings be stayed pending finalisation of their application.