Maseru/Harare – When the Lesotho authorities decided to hire foreign judges to steer ongoing high-profile murder trials involving former high-ranking Lesotho Defence Force personnel, little did they know that they were dragging an ant-infested log into the courtroom.
Charles Hungwe, the Zimbabwean judge who was in January 2019 hired to head the Lesotho High Court bench to try a former Lesotho top army officer, Lieutenant General Tlali Kamoli, and eight other military servicemen on murder charges, recently threw out an application for his recusal from the trials.
Kamoli allegedly conspired with Captains Litekanyo Nyakane and Haleo Makara, Sergeants Lekhooa Moepi and Motsamai Fako, as well as well four corporals—Marasi Moleli, Motsoane Machai, Mohlalefi Seitlheko and Tsitso Ramoholi—to fatally shoot Lieutenant-General Maaparankoe Mahao in 2015.
They are also accused of murdering Sub-Inspector Mokheseng Ramahloko, Police Constable Mokalekale Khetheng, Lisebo Tang and others.
Gunning for recusal
The suspects wanted Hungwe to recuse himself because they felt he would be biased, after describing them as a “gang of military officers who took down Mahao”, during a bail hearing in August 2019.
Former South African national prosecutions authority boss, Shaun Abrahams, whose integrity has also been questioned, was hired as the prosecutor in the Lesotho trials.
The detained soldiers complained that Justice Hungwe’s sentiments suggested he already decided they were acting unlawfully in effecting an arrest on Mahao for alleged mutiny against Kamoli’s command in 2015, thereby rendering their trial academic.
The soldiers argued that the prosecution led by Abrahams had lied about the number of witnesses he would be calling to give testimony.
But Justice Hungwe last week dismissed the recusal application, describing it as frivolous and baseless.
“Some of the demands made by the accused in their court papers are baseless…The accused have failed dismally to file my recusal, therefore the application is dismissed!” said Hungwe as he handed down his judgment.
“The applicants knew long before that I was presiding over their case, then in August 2019 their bail application failed,” said Hungwe.
At that time, the suspects had sought to bar the foreign judges that the Lesotho government had appointed to preside over the murder trials and other constitutional cases, purportedly to ensure neutrality and fairness.
They argued that the decision to hire foreign judges was made by the executive and was likely to compromise the independence of the judiciary, but this initial application was dismissed for lack of merit too.
In addition to Hungwe and Abrahams, two Botswana judges, Onkemetse Bashi Tshosa and Kabelo Kenneth Lebotse, and Namibia’s Petrus Damaseb joined the Lesotho bench on a temporary basis last year.
The legal dilemma
The murder trials look set to proceed with the hired bench, but Hungwe’s judgment has attracted mixed feelings already.
Hoolo Nyane, a National University of Lesotho constitutional law professor says Hungwe’s decision to stick to the bench in the face of the call for his recusal jeorpadises the independence of the judiciary.
“Should there be a question on the judge being biased or perceived to be so, the presiding judge must recuse himself because, at law, independence is one of the key aspects when dealing with a case,” Nyane said.
An application for recusal can be filed even when there is mere suspicion of bias and once that happens, it is prudent for the targeted judge to step aside, he added.
“It does not matter whether it is a local, magistrates’ or the High Court, any judicial officer at any level (who is) suspected of being biased must recuse himself from a case,” Nyane said.
“You apply to the same judge whose conscience you are questioning. Because they work on the basis of conscience….it must tell the judge that he must recuse himself,” he added.
Nyane, however, conceded that, procedurally, the application for recusal must be made before the same judicial officer who is presiding over the case, a position that was also shared by leading Zimbabwean lawyer, Douglas Mwonzora.
Mwonzora, also a former top opposition leader with the Movement for Democratic Change (MDC), said: “If a judge or magistrates steps aside from the recusal process, it means he or she has already recused him- or herself.”
Another top Zimbabwean advocate, Obert Gutu, echoed the same sentiment on procedure, but added that, “admittedly, bringing an application for recusal before the very person you want to excuse himself from the process in an awkward position even though it is legally permissible.”
As he dismissed the application, Hungwe played around with semantics. He did not deny that he described the suspects as a “gang”, but tried to extricate himself from the messy choice of words by insisting that the word was not immoral, just a synonym for “team”.
Lesotho’s titled bench
Analysts have already pointed out that the Lesotho government could have implicitly condemned its own High Court bench by insisting on foreign judges, no matter how well-meaning it was.
They say the decision to fish from beyond its own borders meant that it felt that its own waters were muddied.
And maybe for a good reason, because the Lesotho bench and judiciary are not without their own controversies.
For long, the judiciary has been rapped for lack of independence due to political interference.
Just recently, the Acting Chief Justice, Maseforo Mahase, accused unnamed “powerful forces” of trying to push her off the bench for political reasons.
As the chair of the Judicial Services Commission (JSC), the Acting Chief Justice, standing in for the presently suspended Chief Justice, Nthomeng Majara, has had to deal with many complaints by members of the public who accuse the judiciary of failing to deliver on judgments and lacking discipline.
Similarly, Judges Tseliso Monapathi and Keketso Moahloli had ignored her instructions to issue long overdue judgments.
“I have numerous complaints about Judge Molefi Makara for refusing to deal with civil matters. Some of the judges are not happy that I am the ACJ (Acting Chief Justice). Judge Chaka Makhooane is not enamoured with me as she is a closer friend to the suspended CJ Majara than with me,” she said in her affidavit.
A mixed judge
The two Zimbabwean advocates, Gutu and Mwonzora, have high regard for Hungwe—despite some controversies that dog him—describing him as “highly professional, competent and upright”.
He applied and was appointed the Acting High Court Judge for Lesotho early last year in a process that also involved the Southern Africa Development Community (SADC).
Rising from being a prosecutor in the 1980s, he is a former liberation fighter against colonial rule in the then Rhodesia, coming back from the war to take up law studies and subsequently practicing privately, then publicly.
He was appointed to the Zimbabwean High Court by the late ex-president, Robert Mugabe, in 2000 and is now a Constitutional Court justice.
He was a member of a group that strongly advocated for the formation of a platform to advance the welfare of ex-freedom fighters and became the founding chair of the Zimbabwe National Liberation War Veterans Association (ZNLWVA) in 1990.
Justice Hungwe is widely viewed as a protégé of President Emmerson Mnangagwa, who replaced Mugabe in November 2017 following a military-assisted takeover.
One case cited as strongly suggesting a close link between the two is the December 2016 judgment that Justice Hungwe made to suspend the selection of the Chief Justice through public appointments.
A University of Zimbabwe student, Romeo Zibani, had made an application to, inter alia, stop the process of choosing a judge to replace the outgoing Chief Justice Godfrey Chidyausiku. Justice Hungwe ruled in Zibani’s favour.
Coincidentally, Mnangagwa, who was then Vice President but also doubled up as the Justice minister, had publicly acknowledged his bias for the exclusion of parliament and the public from choosing the Chief Justice, preferring, instead, that the sitting president must just appoint the Chief Justice.
President Mnangagwa hails from Zvishavane and Justice Hungwe, Chivi, which borders the president’s home area. Both are rural districts in the Karanga-dominated Midlands province.
The Hungwe family enjoys political and bureaucratic prominence based on its long history as members of the ruling Zanu PF.
Justice Hungwe is brother to Dr Vincent Hungwe, the current chairman of the Public Service Commission.
He is also a close relative of Josiah Hungwe, a former provincial minister and prominent Zanu PF member and was related to the late Silas Hungwe, who formed and headed the pro-Zanu PF Zimbabwe Farmers Union.
The judge is brother-in-law to Dr Ndakaripa Mabel Hungwe, a Zimbabwe Anti-Corruption Commission (ZACC) commissioner who is also the wife of Dr Vincent Hungwe.
Justice Hungwe has made brave, but sometimes controversial decisions as a judge. His 2016 judgment postponing public interviews for the position of Chief Justice was subsequently quashed by the Supreme Court for lack of merit.
In 2013, the judge granted bail at his farm at night to an anti-government human rights lawyer, Beatrice Mtetwa, a move that angered senior government officials.
Again, in 2013, he authorised the Zimbabwe Anti-Corruption Commission (ZACC) to search the offices of three sitting cabinet ministers, two of who were opposed to then Justice Minister Mnangagwa’s faction in Zanu PF and were being accused of corruption.
But the judge came under fire at one time for failing to sentence an accused person he had convicted. The victim spent 10 years in jail without a sentence, and when the matter came to the surface, Hungwe slapped him with two life sentences for a murder which he had been convicted for.
Justice Hungwe was proved to have been involved in at least two extra-marital affairs. The first matter came to light in 2005 when he allegedly forcefully took custody of a son he had sired with a woman who subsequently died.
In the second case, in 2014, a businesswoman he had had a long relationship with outside marriage died of an asthma attack, allegedly after a sex act between the two. The justice was rapped for leaving her alone in her house in a critical condition to purportedly look for help.
But Gutu insisted: “His personal life has absolutely nothing to do with his professional life”.
Shaun the Sheep
Shaun Abrahams comes second in hogging the limelight in the military murder trials in Lesotho and, again, he is not without controversy.
He is a South African lawyer and the former national director of public prosecutions (NDPP) at the National Prosecuting Authority.
Before he was appointed NDPP in 2015 when Mxolisi Nxasana stepped down, Abrahams had been a senior state advocate in the Priority Crimes Litigation Unit.
Questions were immediately raised about the manner in which he had been promoted ahead of more senior prosecutors.
Abrahams had joined the NPA as an administrative clerk in a provincial office while completing his legal studies.
His appointment was challenged by Freedom Under Law, and on 8 December 2017, it was set aside by a full bench of the High Court, finding that he was irregularly appointed.
Abrahams has been seen as complicit in helping ex-South African president, Jacob Zuma, avoid corruption charges, and was given the nickname “Shaun the Sheep” as a result.
The NPA appealed this ruling against his appointment, but in August 2018, the Constitutional Court ordered that Shaun Abrahams vacate his position as NDPP and President Cyril Ramaphosa appoint a new NDPP within 90 days.
Not much noise has been made about the two Botswana judges and their Namibian counterpart.
Questions, though, have been raised around Botswana’s Lebotse who served only one term as an acting judge and could not be confirmed on a long-term basis. Most of his professional career seems to have been spent outside the judiciary.
*This news analysis was supported by Information for Development Trust (Zimbabwe) and MNN Centre for Investigative Journalism (Lesotho)