CIV/APN/82/99

IN THE
HIGH COURT OF LESOTHO

HELD AT
MASERU

IN THE
MATTER BETWEEN

2nd
LIEUTENANT RANTSO JOSIAS SEKOATI 1st APPLICANT

AND 48
OTHERS

and

PRESIDENT
OF THE COURT MARTIAL 1st RESPONDENT

(LT. COL.
G. P. LEKHANYANE)

HON
PAKALITHA MOSISILI 2nd RESPONDENT

ATTORNEY
GENERAL 3rd RESPONDENT

JUDGEMENT

Delivered
by the Honourable Chief Justice Mr Justice J. L. Kheola On the 11th
Day of October 1999

1. The
   applicants are all standing trial before a Court-Martial on charges
   of mutiny.

   
   

2. In
   the Court-Martial proceedings, the Applicants challenged the
   jurisdiction of the Court Martial to hear their case. This challenge

   had two separate components:

   
   

2.1 First, the Applicants alleged that the Court-Martial lacked the

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independence required of all courts by Section 118 of the
Constitution.

2.2 Second, the Applicants alleged that the Court-Martial was not
established by Parliament as contemplated by Section 127 of the

Constitution.

3. The
   Applicants' two challenges were dismissed by the Court-Martial,
   acting on the legal advice of the Judge Advocate. In the present

   application the Applicants seek an order reviewing and setting aside
   the decisions of the Court-Martial to dismiss their challenges
   to
   its jurisdiction. In the alternative, the Applicants seek:

   
   

3.1 an order declaring that Sections 100,102,109,110 and 111 of the
Lesotho Defence Force Act, 1998 ("the Act") together
with
Rule 21(2) and (3) of the Defence Force (Court-Martial) (Procedure)
Rules, 1998 ("the Rules") are unconstitutional
on the
grounds of their inconsistency with Section 118(2) of the
Constitution, and

3.2 an order declaring the present Court Martial unconstitutional as
it has not been established as contemplated by the Constitution.

3. In
   these heads of argument we will first consider the necessary
   elements of the "Independence" Section 118 of the

   Constitution requires of all courts. We will then examine the scheme
   of the Act and Rules in respect of court martial and will
   submit
   that the courts martial constituted in terms of this

   
   

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scheme fail to meet the constitutional standard of independence
required by Section 118. Our submissions in this regard will relate

to the constitutionality of the Court-Martial as an institution (and
not to the impartiality of its specific members).

3. The
   Applicants' challenge is directed at the power and competence of the
   Court-Martial itself. The challenge is, in essence, that
   the
   institution of the Court-Martial as constituted under the Act and
   Rules lacks the essential prerequisites of judicial independence

   including security of tenure, financial security and institutional
   independence with respect to matters of administration which
   relate
   directly to the exercise of the Court-Martial's judicial function.
   Furthermore, the Court-Martial would be perceived by
   an ordinary
   informed and reasonable person as lacking the essential requirement
   of independence.

   
   

On the
23rd August, 1999 I dismissed the application with costs and promised
to file my reasons for judgment at a later stage. The
following are
the reasons.

Section
118(1) and (2) of the Constitution reads as follows:

1. "The
   judicial power shall be vested in the courts of Lesotho which shall
   consist of-

   
   

1. a
   Court of Appeal;

   
   

2. a
   High Court;

   
   

3. Subordinate
   Courts and Courts-martial;

   
   

4. such
   tribunals exercising a judicial function as may be established by
   Parliament.

   
   

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2. The
   courts shall, in the performance of their functions under this
   Constitution or any other law, be independent and free from

   interference and subject only to this Constitution and any other
   law."

   
   

Section
127 of the Constitution reads as follows:

"Parliament may establish courts subordinate to the High Court,
court-martial and tribunals, and any such court or tribunal
shall,
subject to the provisions of this constitution, have such
jurisdiction and powers as may be conferred on it by or under
any
law."

I shall
deal first with Section 127. The defence counsel Mr Chaskalson, has
submitted that the present Court-Martial was not established
by
Parliament in terms of Section 127, it was established by the
Minister. That the Lesotho Defence Act 1996 (the Act) does not

establish any Court Martial. It purports to delegate that function to
the convening officer. This is not permitted by Section 127,
so he
submitted. He submitted that the doctrine of the separation of powers
requires that the establishment function vested by
the Constitution
itself in legislature may not be delegated to the executive. He went
further to submit that the requirement that
"courts subordinate
to the High Court, courts martial and tribunals" should be
established by parliament is not one of
form. It is an important
safeguard of the independence of the judiciary. Courts established by
Parliament have a degree of permanence
and are much more likely to be
independent than courts established ad hoc by the executive in terms
of delegated legislation.

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Unlike
the High Court and the subordinate courts a Court Martial is not a
permanent court. It is an ad hoc body which is convened
when the need
arises, that is the reason why the Constitution leaves it to
Parliament to establish a Court-Martial. This is exactly
what
Parliament has done but it has not used the magic words "there
shall be and are hereby constituted Courts Martial."

Obviously
such words could not be used because a Court Martial is an ad hoc
body convened or assembled only when the need arises.
I disagree with
the submission that when the Minister convenes and appoints members
of the Court Martial is exercising powers given
to him by delegated
legislation.

Section
192 of the Act provides for certain things for which the Minister may
make Regulations for the better carrying out of the
Act and generally
for the good governance and organisation of the Defence Force and
provides for seven subjects in which the Minister
may make
Regulations. It is significant, that in all the provisions of section
192, the convening of the Court-Martial and the
appointment of its
members are not some of the subjects covered by delegated
legislation. It is therefore not correct to say that
the
Court-Martial was established by the executive in terms of a
delegated power.

Part IX
of the Act deals, in its own way, with the convening of the
Court-Martial and all matters relating to the establishment
of that
court. I have already said above that the word "establish"
is not used anywhere in the Act, especially in Part
IX. However the
clear intention of the Act in Part IX is to establish a
Court-Martial. The submission that the present Court -Martial
was not
established in terms of Section 127 of the Constitution is without
any substance and it is accordingly dismissed.

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On the
question of case law on Courts-Martial and judicial independence Mr.
Chaskalson. counsel for the appellants has relied on
a number of
cases

including
a Canadian case of R. V. Genereux.....in which Lamer, CJC stated the

following
at p. 123:

"An examination of the legislation governing the general court
martial reveals that military officers, who are responsible
to their
superiors in the department of defence, are intimately involved in
the proceedings of the tribunal. This close involvement
is, in my
opinion, inconsistent with Section 11 (d) of the Charter. It
undermines the notion of institutional independence that
was
articulated by this court in Valente. The idea of a separate system
of military tribunals obviously requires substantial relations

between the military hierarchy and the military judicial system. The
principle of institutional independence, however, requires
that the
general court martial be free from external interference with respect
to matters that relate directly to the tribunal's
judicial function.
It is important that military tribunals be as free as possible from
the interference of the members of the military
hierarchy - that is,
the persons who are responsible for maintaining the discipline,
efficiency and morale of the armed forces.

In my opinion, certain characteristics of the general court martial
system would be very likely to cast into doubt the institutional

independence of the tribunal in the mind of a reasonable and informed
person. First, the authority that convenes the court martial

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(the "convening authority") may be the minister, the chief
of the defence staff, an officer commanding a command, upon
receipt
of an application from a commanding officer, or another service
authority appointed by the minister... The convening authority,
an
integral part of the military hierarchy and therefore of the
executive, decides when a general court martial shall take place.
The
convening authority appoints the president and other members of the
general court martial and decides how many members there
shall be in
a particular case. The convening authority, or an officer designated
by the convening authority, also appoints with
the concurrence of the
judge advocate general, the prosecutor. This fact undermines the
institution independence of the general
court martial. It is not
acceptable, in my opinion, that the convening authority, ie. the
executive, who is responsible for appointing
the prosecutor also has
the authority to appoint members of the court martial, who serve as
the triers of fact. At a minimum, I
consider that where the same
representative of the executive, the "convening authority",
appoints both the prosecutor
and the triers of fact, the requirements
of Section 1 l(d) will not be met."

In his
judgment the learned Judge - Advocate, Mr Justice Cullinan said at
pages

78-80 of
the record:

"It is not accurate, as I have said, to say that all findings by
court-martial are ineffective until confirmed. Even if the
statement
were completely accurate, it must be said that when the court-martial
system developed and courts-martial on active service
sat without

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lawyers of any kind, it became necessary for a confirming authority,
invariably advised by a lawyer of some kind, to check or review
the
legality of the finding. I cannot see how a subsequent review could
be regarded as an interference in the proceedings, which
have
terminated. In any event, what member of a tribunal, judicial
officer, magistrate or Judge can regard his decision as being

absolutely final and conclusive? They all enjoy the comfort of
knowing that if they are wrong, they will be put right. What
difference
can it make to the President and Members of a
court-martial to know that any decision of theirs, which is
appealable, is also subject
to confirmation?

Undoubtedly the confirming authority in this case is a member of the
executive; but if his function can only operate to the benefit
of the
accused, and he can only be regarded as benign rather than a malign
influence, how can there be any objection to such function?
The
accused may of course appeal to the Court-Martial Appeal Court: the
process of confirmation in effect gives him a second bite
at the
cherry. It matters not, the identity of the confirming authority: he
cannot act to the accused's detriment and there is
every reason to
believe that, advised by the Attorney-General, he may afford the
accused some relief. Take away the process of
confirmation and we do
the accused a disservice.

When it comes to confirmation the accused is in a better position
than his civilian brother convicted, say, before a Magistrate's

Court. A review by the High Court is automatic, but only in limited
cases, while some other cases may be selected on a random basis.
All

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convictions by a court-martial are reviewed on confirmation.
Secondly, a convicted soldier may present a petition to the
confirming
authority. The civilian accused is seldom even aware of
review, conducted for the main part in the privacy of Chambers, until
he
is informed of the result thereof: it is only where the High Court
proposes to enhance punishment, that the accused is given the

opportunity of making representation.

I cannot
then say that the aspect of confirmation, even by the convening
authority, in any way militates against the independence
of a
court-martial. The President and Members have their duty to execute.
They have their decisions to make and when they are made,
the
President and Members are functus officio. Just as in the case of a
judicial officer, or magistrate, or Judge, the aspect of
appeal or
review is simply not relevant to the judicial decision.

Then it
is said that because the President and Members are subordinate to the
convening authority, they cannot as a court be "independent
and
free from interference", as they, Mr Mosito submits in his Heads
of Argument,

"Cannot be expected to risk finding the accused persons not
guilty as charged without risking giving their Boss a slap in
the
face and risking their job".

I
entirely agree with the learned Judge Advocate.

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It does
not necessarily mean that because the convening authority and the
confirming authority is a member of the executive the
court martial
is not independent. What must be considered carefully is whether
after the members of the court martial and the President
are under
the influence of the convening authority or confirming authority
during their deliberations before they reach a verdict.
The Lesotho
Defence Act 1996 does not allow for that. Once the appointment has
been done the convening authority has no power to
get involved in the
judicial function of the court martial. It is only the Judge Advocate
who has to advise the court martial on
all points of law. There are
specified reasons under which the convening authority can dissolve
the court martial. I take the view
that his power to dissolve the
court martial cannot be arbitrary because the grounds under which he
can so act are clearly stated.
This power cannot be regarded as an
interference with the independence of the court martial.

It was
submitted on behalf of the appellants that:

42. No provision in the Act or the Rules limits the removal of any
member appointed to the court martial by the convening authority
to
any particular ground. Like all other officers, members of a court
martial may be

42.1 removed by the King acting on the advice of the Prime Minister
(who is also the convening and confirming authority in the
present
case);

42.2 retired on grounds of redundancy by the Minister (who is also
the convening and confirming authority in the present case);

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42.3 be directed by the Minister to retire, if they have more than
twenty years' pensionable service, or if they have no reasonable

prospects of future promotion; or

42.4 be transferred by the Commander (who is an important witness in
this case).

It was
submitted that in the sense stated above there is no legislative
security of tenure. I do not agree with these speculative
and
unreasonable grounds. The members of the court martial are members of
the regular army and can only be treated in the manner
described
above for obvious and stated reasons. The members of the armed forces
are not serving under the precarious tenure as
suggested on behalf of
the appellants. Some of them are commissioned by His Majesty The
King. Their removal from the Force is not
as easy and arbitrary as it
was submitted on behalf of the appellants. It is almost impossible
that in this country we shall ever
have a vindictive commander of
Lesotho Defence Force as the one portrayed on behalf of the
appellants and by some of the decisions
referred to.

Another
challenge directed at the Act is that members of the court martial
lack financial security. There is no provision in the
Act or Rules
protecting the remuneration of members who sit on the court martial.
Their promotion and remuneration is governed
by the ordinary
provisions applicable to all members of the LDF. These provisions
vest considerable discretionary powers in the
Prime Minister or
Minister, who is the confirming and convening authority of the
present court martial, and the Commander, who
is an important witness
in the proceedings.

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I fail to
understand the reasoning in this argument. The President and members
of the present court martial are members of LDF who
are on permanent
and pensional establishment in the army. Like all other members of
the army their salaries do not depend on their
performance in a
particular assignment given to them. They are regularly paid on a
monthly basis and not on the discretionary powers
of the Prime
Minister or the Commander of LDF.

The fears
expressed by the appellants are unfounded and unreasonable. For the
reasons stated above the application was dismissed
on the 23rd
August, 1999.

J.L.
KHEOLA

chief
justice

11th
October 1999

For
Applicants: Mr Chaskalson

For
Respondents: Mr Viljoen

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