Soldiers’ application to appeal dismissed

Soldiers’ application to appeal dismissed

MASERU – A High Court judge yesterday dismissed Lt Gen Tlali Kamoli and eight other soldiers’ application to grant them leave to appeal his decision to refuse to recuse himself from the murder case.
Justice Charles Hungwe told the soldiers he did not believe they had any prospect of success if they took their case to the Court of Appeal.
The judge however told the soldiers that he would put their trial in abeyance until such time they had duly exercised their rights if they wished to appeal.
“Although the court has found that the accused have failed to meet requirements for the court to grant leave, I believe it is in the interests of justice that my findings on whether their application has merit ought to be tested in the Court of Appeal,” Justice Hungwe said.

He said they failed to demonstrate that their proposed grounds of appeal enjoy reasonable prospects of success.
“One is left wondering what the Court of Appeal is being asked to determine,” he said.
“No clear and specific demarcation or explanation is made in the grounds of appeal on whether I committed an error on a point of law or on a finding of a fact.”
The judge said “it is unclear what it is the applicants are inviting the Court of Appeal to deliberate on”.

He however said he would never stop them when they want to go to the Court of Appeal as it is their right to do so.
“This is meant to avoid a situation where a decree of nullity would be returned after the trial has run its full course,” he said.

He said from the applicant’s grounds of appeal, it was suggested that he misunderstood their arguments in respect of the source of ‘prior knowledge of the facts’ which will be at issue in the trial.
He said the point was made in the judgement that the same information in the bail application of Sergeant Motsamai Fako was the same information in the public domain.
He further said the test in an application of this nature was whether there are reasonable prospects of success.

Put differently, “would an appellate court find on the facts and in the circumstances of this case, that I ought to have recused myself?”
He said he does not hold that an appellate court would have regarded that “a reasonable person who had the correct facts and the circumstances surrounding the application for recusal would reasonably have concluded that there was a reasonable apprehension of bias arising from the grounds advanced by the applicants in their application”.

“I find that there are no reasonable prospects of success and therefore I dismiss the application for leave to appeal,” he said.
Lt Gen Kamoli and eight other soldiers are being charged with the murder of Lt Gen Maaparankoe Mahao in June 2015.
Lt Gen Mahao was assassinated by his juniors on his way from his Ha-Lekete rural home in Koro-Koro.

The soldiers say Justice Hungwe should recuse himself from the case because he will sentence them to death upon conviction as pushed by the prosecution.
They argue that he uttered “words suggesting he already perceived us guilty when he handled our applications for bail”.

Itumeleng Khoete

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