C OF A (CRI) NO. 5 OF 1998
IN THE LESOTHO COURT OF APPEAL
In the matter between:
LEPOQO SEOEHLA MOLAPO
Held at Maseru
Van den Heever JA
Arising out of an abortive attempt on the part of appellant and two coconspirators to take over the Lesotho Radio Station in order to announce the overthrow of the government, the appellant was convicted of the crime of high treason in the High Court.
The appellant's co-accused pleaded guilty to sedition. A separation of trials followed in which they were found guilty of sedition and each sentenced to 2 years imprisonment.
The appellant was sentenced to 10 years imprisonment, three years of which were suspended on certain conditions. He noted an appeal both against his conviction and his sentence. On conviction the appellant alleged that -
'The Court erred in holding that appellant's explanation of his presence in the midst of his co-accused during the formation of the alleged conspiracy was false, and that of the two accomplice witnesses were wholly satisfactory.
The evidence that appellant was present at the Radio Lesotho Studios was concocted at the trial itself because that overt act was not even alleged against the appellant in the indictment.
There is no cogent proof beyond reasonable doubt that appellant, apart from engaging in discussions about treasonable activities, did participate in a decision or agreement actually to commit the stipulated overt acts."
On sentence the appellant contended that the sentence was too severe and ''induces a sense of shock regard being had to the fact that the alleged conspirators were given a light sentences (sic) by the learned trial Judge."
In order to adjudicate on this matter I set out briefly some of the most important events that occurred in the prosecution of this appeal. It has indeed had a most unfortunate history. It has been punctuated by delays caused in the main by the failure of the Crown, as represented by the former Director of Public Prosecutions, to honour its undertakings to ensure that the record was complete and that the matter could be heard at the latest during the current session of the Court of Appeal.
Not only was the record not reconstructed as undertaken but no steps were taken to do so. The undertaking given in the form of an affidavit by the then Director of Public Prosecutions "that we will do everything to ensure that the appeal noted by the appellant proceeds without fail at the next session of the Court" was not honoured.
In those circumstances the appellant launched an application for bail pending the reconstruction of the record. The Crown was prepared to accede to such a request and the matter would in these circumstances have had to be postponed until the next session of the Court of Appeal. It was hoped that the record would by then have been reconstructed, complete and in a state that would have enabled the appeal be heard.
However, the expectation that the record could be reconstructed turned out to be optimistic. The Acting Director of Public Prosecutions indicated that what appeared to be insuperable obstacles to a reconstruction had surfaced. The postponement of the hearing was therefore unlikely to serve any purpose other than to delay the matter even further.
We have often stated that justice delayed is justice denied. The appellant was arrested in March 1996 and has been in jail ever since i.e. for 4 years. Through no fault of his own and due principally to the negligence of the Crown, his appeal has been pending since he was sentenced on June 12, 1998 - some 20 months ago. Finality needs to be achieved.
In these circumstances the Court sought ways in which the matter could be brought to an end. In this regard the following considerations weighed with us and were put to Counsel for the appellant and the Crown.
In the first place, it would appear to us that on his own version the appellant is guilty of the crime of sedition and that a conviction on such a charge was inevitable, despite the fact that the record was incomplete.
It is also clear that what appellant did was in furtherance of a hare-brained
plot which had no real prospect of achieving the objective of over-throwing the government. Appellant's role in the plot was certainly no greater, indeed probably less significant, than that of his co-conspirators.
I repeat that a reconstruction of the record is at best a remote possibility. That being the case, it would be difficult to sustain a conviction of the appellant on the main charge of high treason and the only conviction which the Crown could hope to secure would be one of guilty of sedition.
As pointed out above the appellant's co-conspirators were convicted on this charge and were sentenced to 2 years' imprisonment. In the light of the above it seemed to us that justice would best be served by substituting a verdict of guilty of sedition for that of high treason and then to determine an appropriate punishment for the appellant in accordance with all the facts before us on appeal.
It was against this background that the Director of Public Prosecutions in our opinion quite correctly and most responsibly conceded that on appeal a verdict of guilty of sedition would be a correct verdict to substitute for that of high treason, the crime of which the appellant was convicted in the High Court. Counsel for the
appellant, aware of the facts and the circumstances set out above, also in our view correctly and responsibly, agreed that the recording of such a verdict was fair and just. On the question of sentence, whilst abiding by the Court's decision, he urged us to ensure justice between the joint conspirators and pointed out to the Court that his client had already spent 4 years' in jail.
The Court therefore upholds the appeal to the extent that it substitutes a verdict of guilty of sedition for that of high treason. The appellant is accordingly found guilty of sedition as charged.
Sedition has been defined as follows:
"Sedition consists in unlawfully gathering, together with a number of people, with the intention of impairing the majestas of the state by defying or subverting the authority of its government, but without the intention of overthrowing or coercing that government." (See SA Criminal Law & Procedure 3rd Ed. by Milton Vol. II p42. See also the other definitions cited op.cit. and at p43.)
Snyman: Criminal Law (3rd Ed.) 303 differentiates between the two offences as follows:
"It differs from high treason in the following respects:
For high treason a hostile intent (animus hostilis) as defined
above is required, whereas for sedition an intention only to resist or challenge the authority of the state is required.
High treason can be committed by one person, whereas sedition can be committed only by a number of persons acting together.
High treason can only be committed by somebody who owes allegiance to the Republic, whereas sedition can be committed even by somebody who owes no such allegiance. Sedition differs from public violence in that it is aimed at the authority of the state, whereas public violence is aimed at public peace and tranquility."
Whilst therefore sedition is a less serious offence than that of treason, it can nevertheless, depending on the circumstances, be a very serious crime. This is the more so in a country where political stability has proved to be an elusive goal and coups d' etat are not infrequent occurrences.
However, in determining sentence the following factors must in our view also be taken into account:
Offenders who have the same or similar degrees of moral guilt and involvement in the commission of a crime, should, in the absence of circumstances that justify discrimination, be treated equally. The Court's impartiality and fairness could be seriously questioned if marked disparities between offenders whose moral guilty is indistinguishable from one another were
to occur. The fact that the appellant's co-conspirators were each sentenced to 2 years imprisonment and that the appellant's guilt is certainly no greater than theirs is therefore a compelling factor in determining his sentence.
Appellant has already served some 22 months of the sentence imposed upon him and has been in jail awaiting trial for a further 2 years since his arrest.
The appellant is a first offender and he participated in a stupid conspiracy that was bound to fail.
We would for these reasons sentence him to a term of imprisonment that would effectively result in his being released forthwith. We believe that this would be a just outcome in view of the fact he has "effectively" served a sentence well in excess of the 2 years imprisonment passed on his co-conspirators.
The Court therefore orders as follows :-
The appeal succeeds to the extent that the finding of the High Court that the appellant is convicted of high treason is set aside. In its place is substituted a verdict of guilty of sedition.
The sentence of 10 years imprisonment (3 years suspended) is also set aside.
In its place the Court orders that the appellant is sentenced to two years imprisonment. Bearing in mind particularly the considerations set out in paragraph 2 above, i.e. that the appellant has already been in jail for 4 years, three months of such sentence are suspended for 3 years on condition that the appellant is not found guilty of the crime of high treason or sedition committed during the period of such suspension.
I agree: Signed:
L. van den Heever
JUDGE OF APPEAL
I agree: Signed:
JUDGE OF APPEAL
Delivered this 13th day of April 2000.
For Appellant: Mr. E.H. Phoofolo
For the Crown: L.L. Thetsane