- Subordinate Courts
The Court-Martial Court
The Court-Martial is established by Section 118 (1) (c) of the Constitution of Lesotho and Lesotho Defence Force Act 4, 1996. In terms of Section 93, of Lesotho Defence Force Act, 4 1996, the Court-Martial consist of the President and the other two members who are members of LDF. Court-Martial Court is a court established to deal with offences committed by members of the Lesotho Defence Force (Section 95 of Lesotho Defence Force Act 1996).
Background Into Military Justice System In Lesotho
Military justice system is designed to uphold basic principle of rule of law and to enhance professionalism within the military by adhering to due process and prevent resort to extra-judicial punishments where military offences may have been committed. Military courts are established under the Constitution and Lesotho Defence Force Act No.4 of 1996(the Act). Section 118 of the Constitution vests judicial powers in the courts of Lesotho and such courts
comprise of courts of Lesotho including Courts-martial. The appellate body of the courts-martial (Courts-martial Appeal Court) is established under Section 146 of the Constitution (as amended).
Military courts is made up of Courts- martial Appeal Court, Courts-martial and courts of summary jurisdiction. The latter court is basically a disciplinary
mechanism designed for relatively minor military offences to be addressed at unit level. The powers of punishment of the presiding officer during a summary trial is very limited as compared to courts-martial which are empowered to impose even the death penalty in respect of specified serious military offences.
NATURE AND COMPOSITION OF COURTS-MARTIAL
Courts-martial are convened on an ad-hoc basis. Each time there is an alleged offence that requires to be dealt with by court-martial a convening order is issued establishing such a court. The Convening Order detail one officer as president and other officers (i.e. as members) that form the court. Members of the court-martial are not legally qualified and they are advised on all legal matters by a Judge Advocate who is legally qualified. The convening authority is the Minister of Defence though he may delegate that power to the Commander.
COMPOSITION OF COURT-MARTIAL APPEAL COURT
Court-martial Appeal Court comprises of one High Court judge as president, plus one judge who is a member as well as one retired senior military officer with legal experience. Decisions of the Court-martial Appeal Court are final.
PROSECUTION OF CHARGES BEFORE COURT-MARTIAL
In terms of Section 17 of the Act prosecution of cases before court martial is carried out by the Director of Legal Services.
An accused person may be represented by a legal representative of his own choice. In terms of the Court Martial (Procedure) Rules of 1998 an accused person may also request to be represented by a legally qualified military officer or he may elect to conduct his own defence.
RULES OF EVIDENCE AND LAWS TO BE OBSERVED
Section 104 of the Act provides as follows:
“save as provided for by this Act, the law which shall be observed in trial of any charge before a court-martial as to:”
- The onus of proof
- Sufficiency or admissibility of evidence
- Competency, compellability, examination and cross-examination of witnesses
- Any matter of procedure shall be the law in force in criminal proceedings in the civil courts
CONFIRMATION OF PROCEEDINGS
Court-martial proceedings are confirmed by the Minister of Defence on the advice of the Attorney General.
REVIEW AND APPEALS
As indicated, appeals from court-martial lie with the Court-martial Appeal Court. On the other hand, judicial reviews of court-martial proceeding lie with the High Court of Lesotho.
ABOUT THE DIRECTORATE OF LEGAL SERVICES
The Directorate of Legal Services (DLS) is a unit within Lesotho Defence Force (LDF) established in terms of Section 17 (1) of the Act. The main duties of the
Director is to advice the Commander on all legal matters pertaining to the Defence Force. As indicated earlier, it is the responsibility of the Director to prosecute charges before court-martial as well as performing other duties as may be assigned to him by the Commander from time to time.
Other specific tasks undertaken by the DLS include the following:
- Liaising with the Attorney General Chambers (Civil Section) in the handling of civil matters pertaining to the Defence Force.
- Providing legally qualified Defending Officers for accused persons before court-martial.
- Providing suitably qualified legal officers as Judge Advocates for court-martial.
Other tasks include provision of training to units and members of the Defence Force about military law including comprehensive modules on Law of Armed
Conflict. It is important to stress that as per its Manning Policy, DLS is divided into four main distinct branches as follows:
- Prosecution Branch
- Defence Branch
- Judge Advocate Branch
- Civil Matters Branch
- Advisory Branch.
For avoidance of appearance of conflict of interest, the branches function autonomously while the Director is only playing an administrative oversight role.