C OF A
(CRI) NO. 5 OF 1998
LESOTHO COURT OF APPEAL
Van den Heever JA
out of an abortive attempt on the part of appellant and two
coconspirators to take over the Lesotho Radio Station in
to announce the overthrow of the government, the appellant was
convicted of the crime of high treason in the High Court.
appellant's co-accused pleaded guilty to sedition. A separation of
trials followed in which they were found guilty of sedition
sentenced to 2 years imprisonment.
appellant was sentenced to 10 years imprisonment, three years of
which were suspended on certain conditions. He noted an appeal
against his conviction and his sentence. On conviction the appellant
alleged that -
'The Court erred in holding that appellant's explanation of his
presence in the midst of his co-accused during the formation of
alleged conspiracy was false, and that of the two accomplice
witnesses were wholly satisfactory.
The evidence that appellant was present at the Radio Lesotho Studios
was concocted at the trial itself because that overt act was
alleged against the appellant in the indictment.
There is no cogent proof beyond reasonable doubt that appellant,
apart from engaging in discussions about treasonable activities,
participate in a decision or agreement actually to commit the
stipulated overt acts."
sentence the appellant contended that the sentence was too severe and
''induces a sense of shock regard being had to the fact
alleged conspirators were given a light sentences (sic) by the
learned trial Judge."
to adjudicate on this matter I set out briefly some of the most
important events that occurred in the prosecution of this
has indeed had a most unfortunate history. It has been punctuated by
delays caused in the main by the failure of the
Crown, as represented
by the former Director of Public Prosecutions, to honour its
undertakings to ensure that the record was complete
and that the
matter could be heard at the latest during the current session of the
Court of Appeal.
was the record not reconstructed as undertaken but no steps were
taken to do so. The undertaking given in the form of an
the then Director of Public Prosecutions "that we will do
everything to ensure that the appeal noted by the appellant
without fail at the next session of the Court" was not honoured.
circumstances the appellant launched an application for bail pending
the reconstruction of the record. The Crown was prepared
to accede to
such a request and the matter would in these circumstances have had
to be postponed until the next session of the
Court of Appeal. It was
hoped that the record would by then have been reconstructed, complete
and in a state that would have enabled
the appeal be heard.
the expectation that the record could be reconstructed turned out to
be optimistic. The Acting Director of Public Prosecutions
that what appeared to be insuperable obstacles to a reconstruction
had surfaced. The postponement of the hearing was
to serve any purpose other than to delay the matter even further.
often stated that justice delayed is justice denied. The appellant
was arrested in March 1996 and has been in jail ever
since i.e. for 4
years. Through no fault of his own and due principally to the
negligence of the Crown, his appeal has been pending
since he was
sentenced on June 12, 1998 - some 20 months ago. Finality needs to be
circumstances the Court sought ways in which the matter could be
brought to an end. In this regard the following considerations
weighed with us and were put to Counsel for the appellant and the
first place, it would appear to us that on his own version the
appellant is guilty of the crime of sedition and that a conviction
such a charge was inevitable, despite the fact that the record was
also clear that what appellant did was in furtherance of a
which had no real prospect of achieving the objective of
over-throwing the government. Appellant's role in the plot was
no greater, indeed probably less significant, than that of
that a reconstruction of the record is at best a remote possibility.
That being the case, it would be difficult to sustain
a conviction of
the appellant on the main charge of high treason and the only
conviction which the Crown could hope to secure would
be one of
guilty of sedition.
pointed out above the appellant's co-conspirators were convicted on
this charge and were sentenced to 2 years' imprisonment.
In the light
of the above it seemed to us that justice would best be served by
substituting a verdict of guilty of sedition for
that of high treason
and then to determine an appropriate punishment for the appellant in
accordance with all the facts before
us on appeal.
against this background that the Director of Public Prosecutions in
our opinion quite correctly and most responsibly conceded
appeal a verdict of guilty of sedition would be a correct verdict to
substitute for that of high treason, the crime of
which the appellant
was convicted in the High Court. Counsel for the
aware of the facts and the circumstances set out above, also in our
view correctly and responsibly, agreed that the recording
of such a
verdict was fair and just. On the question of sentence, whilst
abiding by the Court's decision, he urged us to ensure
between the joint conspirators and pointed out to the Court that his
client had already spent 4 years' in jail.
therefore upholds the appeal to the extent that it substitutes a
verdict of guilty of sedition for that of high treason.
is accordingly found guilty of sedition as charged.
has been defined as follows:
"Sedition consists in unlawfully gathering, together with a
number of people, with the intention of impairing the majestas
state by defying or subverting the authority of its government, but
without the intention of overthrowing or coercing that
(See SA Criminal Law & Procedure 3rd Ed. by Milton Vol. II p42.
See also the other definitions cited op.cit.
and at p43.)
Criminal Law (3rd Ed.) 303 differentiates between the two offences as
"It differs from high treason in the following respects:
high treason a hostile intent (animus hostilis) as defined
above is required, whereas for sedition an intention only to resist
or challenge the authority of the state is required.
treason can be committed by one person, whereas sedition can be
committed only by a number of persons acting together.
treason can only be committed by somebody who owes allegiance to the
Republic, whereas sedition can be committed even by
owes no such allegiance. Sedition differs from public violence in
that it is aimed at the authority of the state,
violence is aimed at public peace and tranquility."
therefore sedition is a less serious offence than that of treason, it
can nevertheless, depending on the circumstances, be
a very serious
crime. This is the more so in a country where political stability has
proved to be an elusive goal and coups d'
etat are not infrequent
in determining sentence the following factors must in our view also
be taken into account:
who have the same or similar degrees of moral guilt and involvement
in the commission of a crime, should, in the absence
circumstances that justify discrimination, be treated equally. The
Court's impartiality and fairness could be seriously questioned
marked disparities between offenders whose moral guilty is
indistinguishable from one another were
to occur. The fact that the appellant's co-conspirators were each
sentenced to 2 years imprisonment and that the appellant's guilt
certainly no greater than theirs is therefore a compelling factor in
determining his sentence.
has already served some 22 months of the sentence imposed upon him
and has been in jail awaiting trial for a further
2 years since his
appellant is a first offender and he participated in a stupid
conspiracy that was bound to fail.
for these reasons sentence him to a term of imprisonment that would
effectively result in his being released forthwith.
We believe that
this would be a just outcome in view of the fact he has "effectively"
served a sentence well in excess
of the 2 years imprisonment passed
on his co-conspirators.
therefore orders as follows :-
appeal succeeds to the extent that the finding of the High Court that
the appellant is convicted of high treason is set aside.
In its place
is substituted a verdict of guilty of sedition.
sentence of 10 years imprisonment (3 years suspended) is also set
place the Court orders that the appellant is sentenced to two years
imprisonment. Bearing in mind particularly the considerations
in paragraph 2 above, i.e. that the appellant has already been in
jail for 4 years, three months of such sentence are suspended
years on condition that the appellant is not found guilty of the
crime of high treason or sedition committed during the period
this 13th day of April 2000.
Appellant: Mr. E.H. Phoofolo
Crown: L.L. Thetsane
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