CRI/T/43/97
IN THE HIGH COURT OF LESOTHO
In the matter of:
REX
vs
1. PHAKISO R. MOLISE
2. MATAO LEUTA
3. TS'OKOLO MOSAE
4. NTSANE MOLETSANE
5. THABISO TSIANE
6. LEFATA RAMAKHULA
7. KALACHANEMPOOA
8. PHILIP MASOABI
9. PHINIUS KHOMO
10. MAOPELA MAKHETHA
11. MOTLALEPULA P. MAFETO
12. RETSELISITSOE RABALE
13. LEBOHANG MABETHA
14. MOELETSI KOEKOE
15. ALPHONCE CHAOLE
16. MOEKETSI JANE
17. MALEBANYE SEEISO
18. MARAKE MOLEFE
19. SEEISO LETSIE
20. LEKHALIMOFO
21. KHAUHELO SEFALI
22. MAKALANG RATEFANE
23. MASITISE MOHAPI
24. ALBINUS MALEI
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25. TEBOHO MATSA
26. THABISO MOTHOBI
27. LEBONA MOTSEARE
28. NAKO B. LETSIE
29. KONYANA RAMAROTHOLE
30. JOHANNES B. FANI
31. MOJALEFA M. PHUMANE
32. ANASTASIA N. PENESI
33. CHAKA LEHATA.
RULING ON THE APPLICATION FOR THE DISCHARGE OF THE ACCUSED PERSONS AT THE CLOSE OF THE CROWN CASE.
The accused persons are charged with the crime of High Treason alternatively Sedition and further alternatively contravention of
section 7 of the Internal Security (General) Act, 1984.
The Crown has closed its case. The defence now applies for the discharge of all the accused persons, on the ground that the crown evidence has failed to establish a case for the accused persons to answer. In the contention of the crown the evidence does establish a case for the accused persons to answer. The crown, therefore, opposes the application for the discharge of the accused persons, at this juncture.
In the present case, there is evidence that on 31 October, 1995, a shooting incident took place at the Maseru Central Charge Office (MCCO). Two Senior Police Officers died in the process. Dockets were opened and investigations mounted. Charges were, as a result, preferred against some suspects who were policemen of lower ranks viz. Molise (A1),
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Lenta (A2), Mosae (A3), Ramakhula (A6), Mafeto (A11), Lekoekoe (A14) Senekane and Makateng. There were rumours that the suspects would resist any attempt to have them arrested. For that reason their superiors were ordered to send the suspects to Maseru Subordinate
Court on 9th January, 1997. At the Maseru Subordinate Court the suspects would, on that day, be given charges and remanded.
The suspects were duly required to appear before the Maseru Subordinate Court on the morning of 9th January, 1997. Only Senekane went to the Maseru Subordinate Court. The rest of the suspects did not. Instead they were joined by many other policemen of lower ranks, from the districts, in their resistance to appear before the Maseru Subordinate court as required. They took up arms, put on steel helmets and operational dress and gathered together at the Police Training College (PTC). It is worth mentioning that Senekane who initially went to Maseru Subordinate court on 9th January, 1997, later on that day joined the gathering at the Police Training College.
As an attempt to persuade the eight (8) suspects to appear before the Maseru Subordinate Court, as required, the Deputy Commissioner of Police, the Commissioner of Police himself, Senior Police Officers, delegates from the Army and the mediation committee held negotiations with the suspects and the policemen of lower ranks who had formed solidarity with them, but all in vain.
On 6th February, 1997, the policemen of lower ranks, in solidarity with the suspects, declared a police strike throughout the country, cordoned off
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several police stations so that services could not be rendered to the general public and rounded up a number of senior police officers who were told that they were dismissed from office and should, therefore, go to their respective homes. Indeed, the Commissioner of Police himself who was, at the time, out of the country on official business was telephonically advised that he had been dismissed from office and on his return to Lesotho would have no access to his office at the Police Headquarters (P.H.Q.). On the 7th February, 1997, the suspects and their associates went to a meeting at the Police Training College (PTC) where they were to table their grievances before the senior police officers for discussion. Instead of placing their grievances before the senior police officers for discussion, the spokesman of the suspects and the other policemen of lower ranks simply announced the names of two senior police officers, appointed by the suspects and other policemen of lower ranks, who were to replaced the dismissed Commissioner of Police and his Deputy. On the afternoon of the same day, 7th February, 1997, newly appointed Commissioner of Police and his Deputy were taken in a convoy of vehicles from the Police Training College (PTC) to the Police Headquarters (PHQ) where they were installed in their new positions by the suspects and other policemen of lower ranks.
As the suspects and their associates were operating from the Police Training College, (PTC) it had become impossible to run that place as a training institution. On 12th February, 1997 the Commissioner of Police, who had by then returned to Lesotho, announced the closure of the Police Training College (PTC). The suspects and the other policemen of lower ranks who had formed solidarity with them then moved from the Police Training College (PTC) to the Police Headquarters (PHQ). On the following day, 13th
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February, 1997, the whole situation had degenerated into a complete anarchy. The suspects and their associates had taken over the Police Headquarters (PHQ), the Maseru Central Charge Office (MCCO) and Mabote police post. They barricaded themselves in those places and denied all senior police officers access to their offices. They thus left the Commissioner of Police with no option but to seek the assistance of the army.
On the early morning of 16th February, 1997, the army did move in. They dislodged the suspects and other policemen of lower ranks who had formed solidarity with them out of the Police Headquarters (PHQ), Maseru Central Charge Office (MCC) and Mabote police post. They escorted them to the army Headquarters at ha Ratjomose where some of those policemen were given charges as aforesaid and detained at the maximum section of the Maseru Central Prison.
It has been argued on behalf of the accused persons that in order to establish the commission of the crime of Treason, the evidence must prove all its essential elements, one of which is conspiracy. In the present case the evidence, so far placed before the court, fails to establish the existence of conspiracy. Furthermore, in order to sustain a conviction on a charge of Treason, there must be the evidence of at least two witnesses incriminating the accused person. Some of the accused persons in this case are incriminated by the evidence of only one witness. They cannot, therefore, be convicted of Treason on the evidence of a single witness.
For the sake of argument, I shall assume that the crown evidence has failed to establish conspiracy which is one of the essential elements of the
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crime of Treason and that some of the accused persons have, indeed, been incriminated by the evidence of a single witness. It is, however, significant to observe that to determine whether or not the crown evidence has established conspiracy, the court must deal with the merits of the evidence. As it will be shown, in a moment, the court is not, at this stage, required to deal with the question of merits. That is a matter to be dealt with after both sides have closed their cases. Although the crown has admittedly closed its case, the defence has not yet done so. The time has, therefore, not arrived for the court to determine whether or not the element of conspiracy has, on the evidence, been established.
In my view, the court must not loose sight of the fact that in addition to the crime of High Treason, the accused persons are charged with alternative crimes of Internal Security and Sedition. Assuming the correctness of the argument that there is need for at least two witnesses to sustain a conviction on High Treason, the argument cannot hold true in respect of the two alternative charges viz. Internal Security and Sedition. I am not persuaded by the argument.
Where, as in the present case, an application for the discharge of the accused persons is made at the close of the crown case, a distinction must be made between two tests viz. A prima facie test and a proof beyond a reasonable doubt test. I am not aware of any law compelling a court of law to deal with the question of credibility of evidence where an application for the discharge of the accused persons is made at the close of the crown case unless, of course, it can be said that the crown evidence is so hopeless that to refuse the application and require the accused persons to answer the charge
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will amount to asking them to go into the witness box and help to build the charge which the crown itself has failed to establish.
The test to be applied, at this stage, is a more lenient one of prima facie case i.e. the court, at this juncture, is required to look at the crown evidence and ask itself whether or not there is evidence which, on the face of it, connects the accused persons with the commission of the offences against which they stand charged. If the reply is in the affirmative, the court is entitled to turn down the application and reserve the question of credibility of evidence to the end when the defence will have closed its case. I must, however, hasten to point out that this does not mean that where, at the close of the crown case, the application for the discharge of the accused persons is refused, the defence is bound to call the accused persons into the witness box or lead any evidence at all. The defence is perfectly entitled to tell the court that it is closing its case without calling upon the accused persons to testify on their defence. It is only then that the court will be compelled to deal with the question of credibility of evidence and apply the more stringent test of proof beyond a reasonable doubt to determine whether or not the accused persons have committed the offences against which they stand charged.
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In my view, there is evidence tending to connect or incriminate each of the accused persons, in this case, with the commission of the offences against which they stand charged. Without going into the question of credibility of that evidence, there is in my finding , a prime facie case for all the accused persons to answer. The application for their discharge, at this stage is accordingly refused.
B.K. MOLAI
JUDGE
23rd July, 1999.
For Applicants: Messrs: Phoofolo, Ntlhoki and Mosito.
For Crown: Mr. Mdhluli
