Jonathan v Director of Public Prosecutions (CRI/APN 636 of 96) [1997] LSHC 3 (24 January 1997)

CRI/APN/636/96 IN T HE H I GH C O U RT OF L E S O T HO In the matter between D A V ID L E L I N G O A NA J O N A T H AN A P P L I C A NT and THE D I R E C T OR OF P U B L IC P R O S E C U T I O NS R E S P O N D E NT J U D G M E NT D e l i v e r ed by the H o n o u r a b le M r. Justice M . M. R a m o d i b e d i, A c t i ng J u d g e, On the 2 4 th d ay of J a n u a r y, 1 9 9 7. T h is is an application for an o r d er releasing t he A p p l i c a nt on bail p e n d i ng his trial on a c h a r ge of H i gh T r e a s on arising f r om an alleged c o up a t t e m pt on 2 9 th F e b r u a ry 1 9 9 6. T he A p p l i c a nt is c h a r g ed together w i th o ne M a t s o so B o l o fo a nd others. T he application is o p p o s ed by the Director of Public Prosecutions. In p a r a g r a ph 7.2 of his f o u n d i ng affidavit the A p p l i c a nt explains his participation in the alleged offence in the following w o r ds :- " 7 .2 On the said 2 9 th F e b r u a r y, 1 9 96 I w as in the c o m p a ny of the said B o l o f o, M o l a po a nd others at R a d io L e s o t ho w h e re B o l o fo t o ok o v er the broadcasting g a d g et or gargets f r om the staff a nd b e g an to b r o a d c a st an a n n o u n c e m e nt to the effect that n ew the g o v e r n m e nt of L e s o t ho h ad b e en replaced by a g o v e r n m e n t, or w o r ds to that effect. It is c o m m on c a u se that this s t a t e m e nt by Bolofo h ad no basis in fact a nd whilst 1 c a n n ot dissociate m y s e lf f r om it, I respectfully s u b m it that it a m o u n t ed to n o t h i ng b ut a p r a nk albeit an e x p e n s i ve o ne in the s e n se that it m u st h a ve c a u s ed a great deal of a l a r m, disarray a nd s u ch like s e n t i m e n ts a nd fears." At the c o m m e n c e m e nt of the hearing of the m a t t er b e f o re me on 8th J a n u a r y, 1 9 97 b o th M r. Sello for the A p p l i c a nt a nd the L e a r n ed Director of Public P r o s e c u t i o ns M r . M d h l u li a g r e ed that the a n s w e r i ng affidavit of the S e n i or Investigating Officer, o ne that M a k a ra filed in C R I / A P N / 3 7 4 / 96 of this H o n o u r a b le C o u rt be c o n s i d e r ed in this m a t t er in as m u ch as it c o n c e r ns the s a me matter. T he A p p l i c a nt in the said C R I / A P N / 3 7 4 / 96 w as o ne M a k a ra S e k a u tu w ho is o ne of the present applicant's c o - a c c u s ed in the treason c h a r g e. T he parties a g r e ed therefore that it w o u ld n ot be n e c e s s a ry for the R e s p o n d e nt to file additional o p p o s i ng affidavits in the matter, I a c c o r d i n g ly e n d o r s ed the parties' a g r e e m e nt a nd a d m i t t ed the said A n s w e r i ng Affidavit of that M a k a ra as e v i d e n ce in the matter. that M a k a ra d e p o s es in part as follows in p a r a g r a p hs 5 a nd 6 of his a n s w e r i ng affidavit:- "5. (c) In the course at (sic) my investigations I have established that the announcement that was made by Matsoso Bolofo on the 29 February 1996 was so made pursuant to a conspiracy among the applicant and others to take over the government of the country through unconstitutional means. There is evidence that when Matsoso Bolofo took over Radio Lesotho on 29 February 1996 he did so in fulfillment of a conspiracy in which the applicant participated. The applicant as a conspirator in the plot to topple the constitutionally elected government of the country knew that Bolofo would make announcement that was broadcast over Radio Lesotho on the 29 February 1996. (d) During investigations I have also obtained evidence that the applicant and others had prior to the 29th February 1996 approached certain members of the security forces to solicit their assistance and support in removing from power through unconstitutional means the government of Lesotho. The date on which Bolofo and others invaded Radio Lesotho premises in Maseru had been agreed by the applicant and his conspirators. It was by design that Bolofo's announcement was made on the 29 February 1996. The conspirators of which the applicant was one had agreed in advance of the procession to which the applicant refers that such a procession would be a prelude to the announcement the conspirators intended to make. (f) (sic) Further, through investigations 1 have ascertained that the announcement that was made by Bolofo was not made in jest. It was made as a clarion call to security forces and the populace to come out in support of the cause of action on which the conspirators had embarked. The conspirators seriously believed that the security forces would come out in support of their unlawful cause. On 29 February 1996 the applicant was waiting in the wings to form a new government if their plan had succeeded. I state that the conspirators were deadly serious in their intention to take over unconstitutionally the government of the country. A p h o t o c o py of the s t a t e m e nt that w as p u b l i s h ed by Bolofo o v er R a d io L e s o t ho on 29 F e b r u a ry 1 9 96 is a n n e x ed m a r k ed " T M 1' I state that the s t a t e m e nt clearly indicates that B o l o fo a nd his co-conspirators, of w h i ch the applicant w as o n e, i n t e n d ed to seize p o w er t h r o u gh unconstitutional m e a n s. In c o n s i d e r i ng the applicant's application I s u b m it that this H o n o u r a b le C o u rt will t a ke into a c c o u nt the serious nature of the c r i me of w h i ch the applicant is c h a r g e d. W h i le I c o n c e de that the applicant h as e v e ry right to m a ke an application for a d m i s s i on to bail the v e ry nature of the c r i me he is alleged to h a ve c o m m i t t ed militates against his application b e i ng granted. T he intention of the applicant a nd his co-conspirators w as to u p s et the constitutional o r d er of things in L e s o t ho a nd there is no a s s u r a n ce that the applicant will n ot c o n t i n ue to e n g a ge in s u b v e r s i ve activities if he is granted bail. I a sk this court n ot to a d m it the applicant to bail." N ow S e c t i on 1 09 of the C r i m i n al P r o c e d u re a nd E v i d e n ce A ct 1 9 81 p r o v i d es as follows:- " 1 0 9. T he H i gh C o u rt m a y, at a ny stage of a ny p r o c e e d i n g s, t a k en in a ny court in respect of an offence, a d m it the a c c u s ed to bail." T he u se of the w o rd " m a y" clearly indicates that the court is vested w i th a discretion in the matter. Authorities are h o w e v er legion that in exercising the discretion conferred by the said section the guiding principle is to uphold the interests of justice by balancing the reasonable requirements of the state with the requirements of our law as to the liberty of the subject. In this regard I am mainly attracted by the principle stated by Miller J in S vEssack 1965 (2)S. A. 161 (D) at 162 C to the following effect:- "In dealing with applications of this nature, it is necessary to strike a balance, as far as that can be done, between protecting the liberty of the individual and safeguarding and ensuring the proper administration of justice The presumption of innocence operates in favour of the applicant even where it is said hat there is a strong prima facie case against him, but if there are indications that the proper administration of justice and the safeguarding thereof m ay be defeated or frustrated if he is allowed out on bail, the court would be fully justified in refusing to allow him bail." 1 further respectfully agree with the learned judge that the attitude of the Director of the Public Prosecutions is a factor to which the court should per se attach weight in balancing the probabilities in the matter. I am mindful however that the ipse dixit of the Director of Public Prosecutions is not conclusive. The onus of proof in a bail application is on the applicant to show that the grant of bail will not prejudice the interests of justice. As I s ee it the m a in consideration in a bail application is w h e t h er the A p p l i c a nt will stand trial a nd n ot a b s c o n d. T he seriousness of the offence c h a r g ed c o n s e q u e n t ly b e c o m es o ne of the factors for consideration in v i ew of the likelihood that a m an will a b s c o nd rather than be h a n g e d. T h us a possibility of a s e v e re s e n t e n ce is in itself a potential i n d u c e m e nt to an a c c u s ed p e r s on to flee. M r. Sello cautions that the seriousness of the offence is d e t e r m i n ed by c i r c u m s t a n c es of a particular c a se a nd n ot by the label g i v en to it. He d e v e l o p ed his a r g u m e nt by c o n c e d i ng that the actions of the A p p l i c a nt do a m o u nt to the o f f e n ce of treason b ut that this s h o u ld be v i e w ed as a " c l u m sy pathetic a nd childish d e e d" w h i ch w o u ld n ot merit a s e v e re sentence. F or my part I consider that H i gh T r e a s on is a v e ry serious offence i n d e e d. In this r e g a rd it suffices to refer to section 2 97 (1) (b) of the C r i m i n al P r o c e d u re a nd E v i d e n ce A ct 1 9 81 w h i ch p r o v i d es as follows:- " 2 97 ( 1) S u b j e ct to sub-section (2) or ( 3 ), s e n t e n ce of d e a th by h a n g i ng - (b) m ay be p a s s ed by the H i gh C o u rt u p on an a c c u s ed c o n v i c t ed before or by it of treason or r a p e ." Such is the seriousness of the offence of High Treason therefore that an accused person charged with the offence faces a possibility of hanging in the discretion of the trial court. I consider therefore that the inducement to flee is very great in a case such as this. Diemount J in S v Mhlawli and others 1963 (3) S. A. 795 expressed similar remarks in the following terms at page 796 :- "It has been said by the courts on several occasions that where the inducement to flee is great - as in this case - and where no extradition from the neighbouring protectorate would be possible - again as in this case - the court will not readily grant bail if the Attorney-General opposes bail." I am further mainly attracted by the remarks of my Brother Molai J in dealing with a bail application on a charge of High Treason in Shadrack N d u m ov The Crown 1982 -1984 L LR 169 at 171 to the following effect:- "It cannot be seriously disputed that charges of High Treason, Sedition and Contravention of the Internal Security (General) Act 1967 are serious charges." The learned Judge concluded that in the event of a conviction the sentence was "likely to be a commensurately serious one" and that, "that being so, the existence of the incentive to abscond must obviously be greater n ow than it was at the time when the applicant had not been served with any charge." The following remarks of the Learned Judge are apposite to the case before me and I respectfully adopt them in toto. He states at page 171 :- "Moreover, the offences against which the applicant and his co- accused are allegedly charged are political ones. It must be borne in mind that people w ho commit these political offences are more often than not people of high political morals and ideals w ho commit them not for personal gains but because of their strong political, view-points or beliefs. Offences of this nature m ay carry for a certain section of the community very little or no social disgrace at all. They may even carry approval. There is therefore great incentive for political offenders to jump bail and avoid standing trials in order to gain freedom to disseminate their view points more efficiently." Indeed there lies the danger. I observe that such is the seriousness with which courts view the offence of High Treason that in the legal history of Lesotho, albeit a short one, (the first Treason case in this country was R v Moerane and ors. 1974-75 L LR 212) but nevertheless a very important history, no court in this country has ever granted bail to a person charged with the offence. This must not be understood to mean however that treason is not bailable or that applications for bail must of necessity be thrown out willy-nilly. Each case must of course be decided on its o wn particular circumstances and merits. In Makalo Moletsane v Rex 1974-75 L LR 272 Cotran J (as he then was) dealing with a bail application pending trial on a charge of High Treason had this to say at page 273" " T he release on bail on s u ch offences (i.e. sedition, m u r d e r, h i gh treason a nd a g g r a v a t ed r o b b e r y) is the e x c e p t i on rather t h an the rule, t h o u gh the H i gh C o u rt a p p e a rs to h a ve p o w e rs u n d er the provisions of section 1 09 to a d m it a c c u s ed p e r s o ns to bail e v en T h e re m u s t, in respect of the offences a b o ve m e n t i o n e d. h o w e v e r, be g o od r e a s o ns for departing f r om this rule, a nd the o n us of s h o w i ng special facts rests on the a c c u s e d ." T h is c a se w as f o l l o w ed by my B r o t h er M o l ai J in the c a se of S h a d r a ck N d u mo (supra). I respectfully associate m y s e lf w i th the a p p r o a ch of the L e a r n ed J u d g e s. T h e re is a further factor w h i ch I s h o u ld m e n t i on w h i ch greatly influenced this court in the decision that it h as arrived at. It is this. T he court w as i n f o r m ed by b o th c o u n s el that the trial against the A p p l i c a nt a nd his c o- a c c u s ed h as b e en set d o wn for the 4th d ay of F e b r u a r y, 1 9 9 7. I n d e ed the L e a r n ed D i r e c t or of Public P r o s e c u t i o ns h as g i v en an u n d e r t a k i ng that this trial will t a ke p r e c e d e n ce o v er all other criminal matters. T h at is w e l c o me n e ws i n d e ed in as m u ch as this court d i s a p p r o v es of l o ng incarcerations of a c c u s ed p e r s o ns w i t h o ut trial. In S e k h o be Letsie v Director of Public P r o s e c u t i o ns C of A ( C R I) N o .3 of 1 9 91 ( u n r e p o r t e d) A c k e r m a nn JA h ad o c c a s i on to r e m a rk adversely a b o ut l o ng d e l a ys in criminal prosecutions. T h is is w h at he said at p a g es 23 - 24 :- "It is in the public interest that justice be n ot delayed. C o n f i d e n ce in the judicial s y s t e m, particularly in the criminal justice s y s t e m, is of p a r a m o u nt i m p o r t a n ce for the e t h os of justice a nd h u m an rights a n d, i n d e e d, for the general w e l l - b e i ng of society. It is a n o t o r i o us fact that loss of c o n f i d e n ce in the w o r k i ng of the judicial s y s t em t e m p ts p e o p le to t a ke the l aw into their o wn h a n d s. Justice m u st n ot o n ly be d o n e, it m u st manifestly be s e en to be d o n e. U n d ue d e l ay in finally d i s p o s i ng of a criminal c a s e, w h e re the a c c u s ed is languishing in g o a l, c an lead to the p e r c e p t i on that there is an ulterior m o t i ve b e h i nd the delay. I h a s t en to a dd that, on the facts presently b e f o re u s, there is no indication w h a t s o e v er that this is in fact so. N e v e r t h e l e ss there is a l w a ys a d a n g er that s u ch a p e r c e p t i on c an It therefore b e h o v es a criminal justice s y s t e m, a nd arise. particularly o ne that prides itself on u p h o l d i ng international h u m an e v e r y t h i ng r e a s o n a b ly in its p o w er to p r e v e nt s u ch a p e r c e p t i on f r om d e v e l o p i n g ." rights s t a n d a r ds in its s y s t em to do I respectfully a g r ee w i th these r e m a r ks w h i ch are a p p o s i te to the c a se b e f o re m e. H o w e v e r, as earlier stated the trial in the present m a t t er will n ow h o p e f u l ly t a ke off on the 4 th F e b r u a ry 1 9 97 a l t h o u gh naturally this m ay n ot be e n o u gh c o n s o l a t i on for the A p p l i c a n t. I c o n s i d er that it w o u ld be irresponsible for the court to release the A p p l i c a nt in a serious m a t t er s u ch as this w i th o n ly a w e ek to go b e f o re the d a te of h e a r i ng of the trial. I r e m a in u n p e r s u a d ed that the A p p l i c a nt will stand trial if released on bail at this stage. I also r e m i nd m y s e lf of the r e m a r ks of D i e m o u nt J in S v M h l a w li a nd others ( s u p r a) at p a ge 7 96 to the f o l l o w i ng effect:- "It seems to me that where the charge relates to a crime affecting the public safety - treason, sabotage or membership of an unlawful organisation - the factor of public safety m ay well be relevant." I consider therefore that the release of the Applicant on bail is likely to endanger public safety. In this regard I have not lost sight of the fact that there are obviously Applicant's co-conspirators out there waiting in the wings. I have also borne in mind that according to a photocopy of the statement published by Matsoso Bolofo over Radio Lesotho on 29th February, 1996 Annexture " T M 1" the said Matsoso Bolofo made the announcement on behalf of, inter alia, leaders of political parties. The veracity of this shall of course be determined in due course at the treason trial itself. Suffice it to say that this court is not prepared to release the Applicant in these circumstances and risk the possibility of the Applicant and his co- conspirators regrouping and trying their luck once more to the detriment of public safety. Indeed politicians are known for their resilience. It is in their nature that they will keep trying even against grave odds until they hopefully achieve their goal. Taking all the above mentioned factors into consideration cumulatively I. have come to the conclusion that the administration of justice will be prejudiced by the release of the Applicant at this stage. Accordingly the application for bail is hereby refused. I shall however not close the door finally on the Applicant's face. T he A p p l i c a nt is therefore free to r e n ew his application if there is a ny inordinate d e l ay in the c o m m e n c e m e nt of his trial o c c a s i o n ed at the instance of the C r o w n. M . M R a m o d i b e di A C T I NG J U D GE 24th January, 1 9 97 F or Applicant : M r: Sello F or R e s p o n d e nt : T he D P P, M r. M d h l u li