Mahao fights back
Lieutenant General Maaparankoe Mahao has launched a spirited defence of his appointment as Lesotho Defence Force (LDF) commander, setting the stage for a potentially protracted legal showdown with the government.
Prime Minister Pakalitha Mosisili last week wrote to Lt Gen Mahao asking him to “show cause” why he should not fire him as LDF commander.
According to the letter dated 20 April 2015 and signed by Government Secretary Moahloli Mphaka, Lt Gen Mahao had seven days to respond “in writing”, failing which he would advise the King to “terminate your appointment and commission”.
In the letter, Dr Mosisili pointed out that Lt Gen Mahao’s promotion was illegal as then prime minister, Thomas Thabane, had not followed due process. He also declared that Lt Gen Tlali Kamoli was the rightful army commander.
Mr Mphaka noted in the letter: “You will recall that about August 2014, former Prime Minister Dr Thomas Motsoahae Thabane, advised His Majesty and on the basis thereof, Legal Notice No 64 of 2014, was published in the gazette, thereby ‘ appointing’ you Lieutenant General and Commander of the LDF. The effect of the said 2014 gazette was to repeal the LDF (appointment of Commander) Notice No 41 of 2012, thereby ‘terminating’ Lt Gen Tlali Kennedyy Kamoli’s app pointment as the Commander of the LDF.
“It has come to o the attention of the Prime Ministerer that in advising the termination of f the appointment of Lt Gen Kamoli, the former Prime Minister had not followed the law, for he had, inter alia, not afforded Lt Gen Kamoli a hearing in terms of the law. Thus it is s clear that the advice and subsequentent ‘termination’ of Lt Gen Kamoli’s appointment was undoubtedly a nullity, llity, unlawful and of no legal force andnd effect.
“By the same token, oken, it has come to the attention of the Prime Minister that when the former Prime Minister advisedd His Majesty to appoint you as thehe Commander of the LDF, he wass well aware you were not only facing acing charges before a Court Martial rtial in respect of which the proceedingsdings had not been disposed of, but that hat above all, you were on suspension.on.
“In accepting thehe ‘appointment’ as Commander of the he LDF, you were also well aware of the unfinished Court Martial proceedingsoceedings against you and the fact that you were on suspension in termserms of the LDF Act 1996. In termsms of the said Act, a suspended officerer suffers disabilities mentioned therein, including prohibition from doing LDF work or carrying out duties uties in the LDF…
“In terms of Sectiontion 21 of the LDF Act, it is not in thehe interest of the Lesotho Defence Force that you remain ‘appointed and commissioned Commander of the LDF. It is also not in the public interest that you remain commissioned Commander of the LDF while you still have pending charges against you in the Court Martial and are, in any event, on suspension.
“It is the considered view of the Prime Minister that in all honesty and without malice to you or anybody, it would not serve peace, stability and harmony of the country if you were now to proceed to occupy the office of Commander to which you have been unlawfully ‘appointed.
“You are to submit your written response within seven days of your receipt hereof, showing cause why the Prime Minister may not advise His Majesty to terminate your purported appointment and commission as the Commander of the LDF.
“It is advised that you make representations as your failure to do so will leave the Prime Minister with no option but to proceed to so advise His Majesty”.
But through his lawyer, Advocate Patrick Vusimuzi Tšenoli of P V Tšenoli Chambers, Lt Gen Mahao, has defended his appointment and also argues he had nothing to do with Lt Gen Kamoli’s predicament.
The response, dated 27 April 2015 and addressed to ‘the Office of the Government Secretary’, and headlined ‘Written Response to Your Letter Dated 20 April 2015’, reads in part: “We are the legal representatives of Lieutenant General Maaparankoe Mahao.
“It is our considered view that the said letter might be misdirected given the fact that there is no such rank as Brigadier/lieutenant General in the Lesotho Defence Force. We don’t comprehend whether the author of that letter does not know the rank of our client or he mixes the two ranks of Brigadier and Lieutenant General as one or treats our client as falling under one of those ranks. However, our client has instructed us to respond thereto with the understanding that the said letter may be addressed to him.
“On the first point of concern, our client notes that the former Prime Minister advised His Majesty as stated but adds that it was the Office of the Prime Minister which gave such advice in terms of relevant provisions of the Laws of Lesotho.
“Be that as it may, it is the Office of the Prime Minister that gave such an advice and cannot later renege and put blame on the client over an act it performed. In short, the Prime Minister cannot give the said advice and later claim that it was unlawful.
“The client was legitimately appointed and the purported unlawful removal of another cannot be visited upon him. To argue otherwise is to say the client was never appointed as Lieutenant General and therefore, there is no need to make this representation. Similarly, it would be wrong for the Office of the Prime Minister to be a complainant and judge in its course as the advice given to His Majesty was made by it, gazetted and became law.
“If at all the same Office of the Prime Minister is aggrieved by its own advice which is now law, it better approaches the courts to a make a determination and not to declare that the advice was a nullity, unlawful and of no legal force and effect as it does not have lawful powers to do so. Only the courts of law are vested with such declaratory powers.”
Advocate Tšenoli further notes the Office of the Prime Minister was aware of the Court Martial when it promoted Lt Gen Mahao.
“The very same Office was neither barred nor marred to advice that our client be appointed as Commander of the Lesotho Defence Force despite the fact that the proceedings had not been disposed in the Court Martial.
“Our Our client had no reason not to obey His Majesty’s instructions and order of the Commander-in-chief of the LDF. The unfinished Court Martial proceedings and suspension did not and do not disqualify him from the appointment. We argue that there is no provision in the LDF Act of 1996 that supports the contention that the client or a suspended officer
suf- fers disabilities of not being appointed as Commander of LDF.
“In short, there is no provision in the LDF Act that says a suspended officer is prohibited from doing LDF work or carrying out duties in the LDF. The interpretation on the powers of the Minister of Defence has been misconstrued. In terms of the LDF Act 1996, the Minister is empowered to constitute and dissolve a Court Martial. On 28 August 2014, the Office of the Prime Minister and the Minister of Defence and National Security, acting pursuant to Section 100 (1) of LDF Act 1996, dissolved the said Court Martial.
“The Prime Minister did not purport to dissolve or revoke the suspension, it actually dissolved it lawfully and the suspension fell off automatically on the grounds stated afore. To say it is the considered view of the Prime Minister that it would not serve peace, stability and harmony of the country if our client were to proceed to occupy the office of Commander to which he has been unlawfully appointed, is just another point indicative that the Prime Minister has already reached a conclusion that the client has been unlawfully appointed.
“It militates against principle of fair hearing to which your letter seeks to adopt. It would have been safer and just for that conclusion to be made after these representations. But as matters stand and given the contents of your letter, these representations seem to be a mere formality and they are not going to convince the Prime Minis Minister at all.
“On the basis of the a afore-going, we are of the opinion tha that there are no just and cogent reason reasons to advice that the appointment an and commission of our client as Com Commander of the LDF be terminated.
“That notwithstanding notwithstanding, we humbly request to be inform informed of the results of these repre representations and be invited to make fu further representations in the even event that the Prime Minister concludes that he is proceeding to advise His Majesty as contemplated”.
Contacted for commentcommen on Tuesday, Lt Gen Mahao con confirmed responding to Dr Mosisili’sMosisil ultimatum but would not d discuss the issue.
“I don’t want to d discuss the issue through the media because I believes my communication with the Prime Minister needs to be treated with confidentia confidentiality,” he said.
On the other hand, Mr Mphaka also refu refused to comment on the matt matter and referred the LesothoLesoth Times to the Minister of D Defence and National Security,Securit Tšeliso Mokhosi.
However, Mr Mokhosi could not be reac reached by the time of going to press last night.
Lieutenant General Maaparankoe Mahao