Ma­hao fights back

Lesotho Times - - Front Page - Keiso Mohloboli

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

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