CIV/APN/83/2014

 

IN THE HIGH COURT OF LESOTHO

 

 

In the matter between:-

 

 

2^nd LIEUTENANT SETHO MALUKE                            Applicant

 

 

And

 

 

COMMANDER LESOTHO DEFENCE FORCE

LIEUTENANT K.T. KAMOLI                                1^st Respondent

 

LESOTHO DEFENCE FORCE                    2^nd Respondent

PRESIDENT OF THE COURT                     3^rd Respondent

MARTIAL COLONEL STEMERE                        4^th Respondent

MINISTER OF DEFENCE AND NATIONAL

SECURITY                                                                 5^th Respondent

ATTORNEY GENERAL                                          6^th Respondent

 

 

 

Judgment

Coram:                          Hon. M. Hlajoane

Date of Hearing:          3^rd April, 2014

Date of Judgment:       13^th May, 2014

 

Summary

Applicant having been labelled a criminal by 1^st Respondent before the parade where the whole army was present- Whether such labelling considered to have resulted in suspicion of bias and likelihood of interference of panellists of Courts Martial- Whether fair trial expected before Court Martial- Whether the Court can order permanent stay of proceedings before Court Martial.

 

HELD:-     That the Court Martial is also a Court established under section 118 (1) of the Constitution.

 

                   That as such it is expected under the Constitution for all the Courts to be independent and free from interference.

 

HELD further:    That all persons appearing before the Courts shall be afforded a fair hearing by an independent and impartial Court, section 12 (1) of the Constitution.

 

Annotations

Statutes

1.     Lesotho Defence Force Act No.4 of 1966

2.    The Constitution of Lesotho 1993

 

Books

Case

Sekoati v President of the Court Martial and another (1995-99) LAC 812

Zanner v Director of Public Prosecutions 2006 (2) SACR 4 5 para 10

S v Roberts 1994 (4) S.A. 915

 

 

[1]     The applicant approached the Court on urgent basis asking the Court in the interim for:-

          (a)     Dispensation of the normal rules on periods for service.

(b)        Stay of the Court Martial against him that was scheduled for 7th March 2014 pending finalization of the application.

©         Release of applicant from military detention forthwith pending finalization of the application.

 

[2]     The ordinary relief was for;

(a)     That Court Martial convened by 1^st and 4^th Respondents be declared unlawful.

(b)        That any intended Court Martial proceedings against applicant by the Respondents be permanently stayed.

©         That applicant be released from Military detention and allowed to resume his duties as an officer in the army.

(d)       Costs of suit.

 

[3]     An interim order was given granting the stay of the Court Martial proceedings and dispensation with the rules pending finalization of the application.  The necessary papers were filed and both sets of heads also filed.

 

[4]     Applicant’s Counsel has rightly identified some two issues for determination being whether;

(i)      The panellists of the Court Martial and the army in general are at liberty to be fair and impartial.

(ii)        This Court can grant a permanent stay of the Court Martial proceedings against the Applicant.

 

[5]     The facts which precipitated the bringing of the Application being that, the Applicant was placed before a parade of soldiers which was convened by the 1^st Respondent on the 5^th December, 2013.  According to the Applicant, in that parade he was labelled a criminal, assaulted and aspersions of his criminality were cast.

 

[6]     It has been the feeling of the Applicant that since the panellists in the Court Martial before whom he has to be tried were present at the parade that gave them a presupposed knowledge of his guilt before the commencement of the trial so that their impartiality has thus been tainted.

 

[7]     What Applicant is saying is that his right to a fair trial will definitely be contravened as the commander, the convening authority had called that parade where all members of the defence force were present when he was labelled a criminal.

 

[8]     In his founding paper the Applicant has shown that he holds position of 2^nd Lieutenant in the Defence force.  He has been detained on suspicion of his involvement in some robbery that took place on the 2^nd December, 2013 and was arrested the next day.

 

[9]     At paragraph 6 of his founding affidavit Applicant has shown that he has been detained by the military police together with members of the police service.  That he has been tortured and brutally interrogated on the orders of the 1^st Respondent to the extent that in order to save his life he admitted to assisting in the robbery that took place by giving logistics of the whereabouts of security personnel and the supply of ammunition and as a result the brutal torture was stopped.

 

[10]  Applicant has alleged at paragraph 11 of his founding affidavit that the whole army had been called to the parade by the 1^st Respondent when he was labelled a criminal.

 

[11]  But in response to what Applicant said above, Respondents only emphasized the independence of the Court Martial and said nothing about the issue of having called the whole army to the parade.  The whole army which also included the panellists to the Court Martial.

 

[12]  Applicant’s counsel argued that what the 1^st Respondent did had the effect of influencing the whole army including the panellists against the Applicant.  This was said regard being had to the discipline in which the 2nd Respondent work which without fail is controlled by a chain of command.

 

[13]  Applicant is thus asking for a permanent stay of the proceedings before the Court Martial.  He has asked this Court to consider his fear of bias as genuine based on the facts surrounding his case.

 

[14]  Reference was made from the writings of my brother Justice Peete on the ‘Lesotho Ethical Principles for the judiciary’ on impartiality.  That;

“Impartiality is an important attribute of an independent judiciary and one which has been recognized universally by many global Conventions, Protocols and other international and regional instruments.  It is in the realm of impartial conduct that the need for ethical principles (code of ethics) come to the fore.”

 

[15]  Applicant has been of the feeling that what the 1^st Respondent did had the effect of influencing the whole army as it had not been denied in the papers that there was such a parade where the Applicant was announced as a criminal.

 

[16]  In response to the prayers by the Applicant, Respondents showed that the applicant has failed to establish and prove that members of the Court Martial were present at the parade.  This the Respondents advanced in their heads of argument not in the affidavits.  As a general rule a litigant in motion proceedings stands or falls by his affidavits and facts therein contained.

 

[17]  The Respondents further argued that the Court Martial is independent and impartial and its members are sworn to administer justice impartially and independently.  But it is a well established principle of law that justice must not only be said to be done but it must also be seen to be done.

 

[18]  The Respondents argued that the Court Martial was lawfully convened as it was convened by the proper authority.  Section 92 of the Lesotho Defence Force Act[1]empowers the minister responsible for Defence to appoint officers to constitute a Court Martial.  The minister may delegate his functions to the commander.

 

[19]  It has not been disputed that the commander convened the Court Martial and appointed members of the Court Martial.  Applicant is challenging the impartiality of the Court Martial for the reasons already shown above.

 

[20]  In support of their argument both counsel referred to the case on appeal of Sekoati and others v President of the Court Martial and others[2] where the Prime Minister as the convening authority had told the media that the appellants were bent on toppling his government.  By that statement, appellant felt that the Court martial established was not impartial and independent.

 

[21]  Incasu, the Applicant correctly argued that the Sekoati matter is distinguishable from our case. In the Sekoati the statement about the Appellants was made to the media which had nothing to do with the decision to be taken against the appellants.  But in the present case the convening authority made a pronouncement about the guilt of the Applicant at the parade where the panellists were present and could be influenced to pre-judge Applicant’s case.

 

[22]  Section 118 (1) of the Constitution[3] has vested judicial powers not only to the civilian Courts but to the Court Martial also.  Subsection (2) therefore mandates the Courts, in the performance of their functions under the Constitution or any other law to be independent and free from interference.

 

[23]  The Sekoati case was about the constitutionality of the Court martial as an institution not so much the impartiality of members forming the panel of Court martial.  But in casu the impartiality that is being challenged is that of the whole army including individual members forming the Court martial.

 

[24]  In Sekoati the Court of Appeal even noted that there was no allegation of bias made in the papers and the challenge was not on any member of the panellists which in fact further distinguishes the present case from Sekoati.

 

[25]  Applicant’s counsel submitted that the requirements for recusal would apply similarly to the circumstances surrounding this case.  Such requirements have been clearly spelt out in the case of S v Roberts[4]as the following:-

(a)      There must be a suspicion that the judicial officer might, not would be biased.

(b)        The suspicion must be that of a reasonable person in the position of the accused or litigant.

©         The suspicion must be based on reasonable grounds.

 

[26]  Could the Applicant’s fear in this case and suspicious of what would become of his case if presided over by any member of 2^nd Respondent be classified as unreasonable?  To answer that we have to analyse the situation.  The 1^st Respondent has not only been the convener of the Court martial but is also the overall commander of the whole army.

 

[27]  Under normal circumstances a child would be looking up to his parents for justice and fairness.  In the same vein a junior officer in the employ of the 2^nd Respondent would be looking up to its superior officer for justice and fairness.  So far the 1^st Respondent to have publicly labelled the Applicant as a criminal before the whole army even before Applicant’s side of the story could be heard was unacceptable.  It was therefore not unreasonable for the Applicant to have suspected bias which in the circumstances of this case was based on reasonable grounds.

 

[28]  In the proper administration of justice a judicial officer in the performance of his duties has to be free from influence in dealing with cases before him/her.  What the 1^st Respondent did in dealing with Applicant’s guilt was not proper before the eyes of justice.  He is a person in authority to the members of the 2^nd Respondent.  It would not be unreasonable to conclude that what he did might have the effect of influencing those under him in dealing with Applicant’s case.

 

[29]  To answer the question of whether or not the Court can grant permanent stay of Court martial proceedings, the answer would be in the affirmative.  Sections 12 (1) and 118 (1) of the constitution dictate and cry out fairness, independence and impartiality on one hand and independence and freedom from interference on the other respectively.

 

[30]  It would not be for this Court to dissolve the Court martial but what this Court has power to do is to stay its proceedings and give directions of what has to follow.

 

[31]  Unlike the Sekoati case, the Applicant is not challenging the composition of the panellists, he is challenging its independence and likely impartiality based on what 1^st Respondent said to the army about him.  The Court Martial in terms of the Constitution is the Court like our civilian Courts where accused and litigants are entitled to fair trial.

 

[32]  The Respondents have referred to the case of Zanner v Director of Public Prosecutions[5] where the Court showed that permanent stay may be granted where there are circumstances rendering the case so extraordinary as to make the otherwise inappropriate remedy of a stay nevertheless appropriate.

 

[33]  The present case appears to this Court as one such a case calling for an inappropriate remedy of stay to be appropriate.  Based on the already stated facts of this case the suspicion of bias and interference cannot be ruled out.  It was never denied that the panellists were at the parade when Applicant was labelled a criminal by the person in authority, the 1^st Respondent.

 

[34]  Applicant has argued that even if the stay is allowed the offences alleged he committed may well be trial before the Courts of law.  I would not agree more with what Applicant said, that what happened to him was extraordinary calling for intervention of this Court.

 

[35]  The interests of justice dictate that even where one has been found red handed, it will only be the Court which will make a pronouncement of his guilt for before that he is  presumed innocent until proven guilty by the Court.

 

[36]  This brings us to the determination on the two issues that this Court had to decide.  The following order is therefore made;

(1)     What the 1^st Respondent did as the person in authority amounted to undue influence and interference with the independence of the Court Martial.

(2)        Based on the pronouncement by the 1^st Respondent at the parade where it has not been denied that the whole army was present including the panellists to the Court martial, the suspicion of bias, unfairness and not being impartial by the panellists before whom Applicant had to appear would not be unfounded.

(3)        Based on the power of the Court to protect its own procedures, the Court allows the permanent stay of the criminal proceedings against Applicant before the Court martial.

(4)        Costs of suit

 

 

A.M. HLAJOANE

JUDGE

 

 

For Applicant:              Mr. Molapo

For Respondents:        Mr. Moshoeshoe