When Judge Charles Hungwe from Zimbabwe arrived in Lesotho earlier this year to start work on a series of controversial trials, he was given a warm reception in the local media. But matters have changed since then with the accused in some of the cases over which he was due to preside proving rather less than welcoming. In fact, 16 accused due to stand trial before him have brought an application for his appointment – and the appointment of all other foreign judges who might hear the pending cases – to be declared unconstitutional. The 16 accused were led by Lesotho’s former defence minister, Tseliso Mokhosi. Their ultimately unsuccessful application was based on the argument that the foreign judges had been appointed with the connivance of the executive, to ensure the conviction of the accused and their harshest possible punishment, even the possible death penalty. The court however dismissed these allegations as “scurrilous” and “deplorable”, and found that the executive had not acted improperly.

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Zimbabwe’s Judge Charles Hungwe is one of several foreign judges who applied to hear controversial criminal cases involving high-ranking figures from among Lesotho’s politicians, army and police.

Bringing in judges from other jurisdictions is not an unusual step for Lesotho but this time the response from the accused has been sharply critical. Headed by the former minister of defence, Tseliso Mokhosi, 16 of the accused have objected to the appointment of Hungwe. So much so that they brought an urgent application for their prosecution to be put on hold while they asked that the high court declare as unconstitutional both his appointment and the appointment of any other foreign judges who might be invited to preside in their cases.

The claim of unconstitutionality is based on their view that the Judicial Service Commission, when it appointed Hungwe, did not act independently. Instead, they say, the commission was “subject to the control and direction of the executive arm of government in violation of the constitution”.

As a result, they now fear that the foreign judges “will not be impartial and give them a fair trial”.

Speaking for all 16 applicants, Mokhosi says they are opposed to the appointments as they believe the government wanted to achieve “specific outcomes” via the foreign judges, namely the conviction of the 16 “at all costs and the harshest possible sentences” including possibly the death penalty.

Mokhosi is clearly correct in that harsh sentences could at least be considered if they are convicted, since the charge sheets include counts of murder, attempted murder, conspiracy to murder, aiding and abetting murder, aggravated assault, damage to property and theft. But in his view the alleged involvement of the executive means a guilty finding is intended and was all but assured.

In his affidavit, Mokhosi adds that while they have nothing against the individual judges, the way in which they had been appointed led to the conclusion “that they were appointed specifically for a particular result”.

The 16 attached affidavits by the country’s Chief Justice, Nthomeng Majara (currently suspended by the government), and the Prime Minister, Tom Thabane, among others, in support of their claims. But these affidavits were not made in relation to Mokhosi’s case: rather, they were filed in relation to a completely different case. This point turned out to be crucial in the attempt to have Hungwe barred from presiding over Mokhosi’s trial. Judges Nomngcongo, Molete and Mokhesi who heard the application, agreed that they were little use in the matter since they were filed in relation to a completely different case and the links, if any, to the application by Mokhosi and his co-accused, were not established by the 16.

The attorney general, who is a member of the JSC, opposed Mokhosi’s application. He explained that after the political disturbances in August 2014, a commission of inquiry recommended that members Lesotho’s defence force, implicated in certain human rights atrocities, should stand trial and should be prosecuted “using best international standards”. As a result, more than 40 defence force members were to be prosecuted in eight cases, including those to be heard by Hungwe.

The attorney general said that the local judiciary could not manage the additional load. Also, in view of “political volatility”, there was a widespread view that local judges might not be seen as independent or impartial in dealing with the people implicated in the cases.

This led the government to approach the Southern African Development Community (SADC) with a request for judges to be seconded to Lesotho to hear the cases. Before SADC was approached, however, government consulted the Chief Justice about bringing in foreign judges and she endorsed the plan, subject to the JSC approving the individual judges proposed. SADC then accepted the proposal and the recruitment process began. The JSC considered the names of interested judges from other SADC countries, and eventually some were recommended to the King for appointment, including Hungwe.

The AG argued that these facts clearly showed that the executive arm of Lesotho did not “interfere” with the independence of the judiciary on this matter, but rather merely triggered the recruitment process which was then left to the JSC to manage.

In considering the case made out by Mokhosi and the other applicants, the court strongly disapproved of their strategy including the slurs against Hungwe and other foreign judges yet to be appointed. The court says Mokhosi’s “virulence” then “spills over” to involve the deputy registrar whom Mokhosi describes as a political activist sympathizing with the ruling party.

“These unfortunate broadsides against judges, Justice Hungwe … and the deputy registrar, are deplorable. It is regrettable that such a scandalous and vexatious matter was allowed to find its way into an affidavit,” said the court, with the judges further criticizing Mokhosi for making “scurrilous allegations”.

The court ruled that when the government approached its development partners and SADC about funding for the cases it was acting constitutionally and was enabling the courts to deal effectively with the pending trials.

The court was urged to award costs at a punitive scale but it declined to do so, dismissing the application with no order as to costs.

What does this mean? At the very least, and leaving aside the possibility of an appeal, it could mean that the long-awaited, politically sensitive trials might now actually begin. For the sake of the country and the rule of law it is important that they should go ahead. The impression has been created for some time that police and members of the defence force enjoy impunity in Lesotho, and these trials are critically important if confidence in the security forces is to be restored.

  • “A matter of justice”, Legalbrief, 14 May 2019