The mi­rage of SADC’S Com­mis­sion of In­quiry

Lesotho Times - - Analysis - Haae Phoofolo Ad­vo­cate Haae Phoofolo (KC) is a for­mer Min­is­ter of Hu­man Rights, Law and Con­sti­tu­tional Af­fairs.

I joined the le­gal pro­fes­sion in this coun­try al­most 40 years ago and I have served in var­i­ous ca­pac­i­ties as a se­nior public ser­vant with the Cen­tral Bank of Le­sotho (deputy Gover­nor) and later a politi­cian.

I equally served as chair­man of the in­fa­mous in­terim gov­ern­ment fol­low­ing a brief col­lapse of Ntsu Mokhehle’s gov­ern­ment two decades ago. I have not openly dis­cussed this is­sue pub­licly but shall re­serve an open dis­cus­sion on the is­sue for another mo­ment in one of my mem­oirs due for pub­li­ca­tion.

Af­ter a stint in prison on trumped-up charges of vi­o­la­tion of for­eign ex­change laws (a po­lit­i­cally mo­ti­vated pros­e­cu­tion) at the Maseru Cen­tral Prison al­most 30 years ago, I then de­voted my­self to the course of Hu­man Rights and thereby ex­pe­ri­enced the hum­bling jour­ney of rep­re­sent­ing var­i­ous per­sons in courts of law as a le­gal prac­ti­tioner in pri­vate prac­tice in a ca­reer that ev­i­dently spans three decades.

From those pro­fes­sional ex­ploits, like many of my col­leagues in a sim­i­lar trade, I have di­rectly bit­ten the bullet and di­rectly chal­lenged var­i­ous gov­ern­ments of the day and earned un­savoury names and bru­tal char­ac­ter as­sas­si­na­tion ex­ploits — some­thing that comes with the ter­ri­tory in our field of trade as lawyers and later learnt that it is even worse when one is a politi­cian.

My take on is­sues that I shall dis­cuss here­with have noth­ing much to do with my pro­file as ei­ther a politi­cian or a lawyer but as a wor­ried Mosotho man speak­ing from the cave.

The view that I shall seek to ex­press in this con­text is premised not on my ar­ro­gant tale of my ex­ploits and es­capades but my broad­based ex­pe­ri­ences in the history of this coun­try post the in­de­pen­dence phase.

The fate of this coun­try is left in the hands of gos­sip and sheer spec­u­la­tion and public pol­icy is­sues are of­ten dis­cussed within the con­text of dem­a­gogue pro­pa­ganda and I will de­lib­er­ately avoid fol­low­ing suit.

Whilst on that point, for the first time in my ex­pe­ri­ence as a lawyer of 40 years, I wit­nessed a har­row­ing sight of mem­bers of the army en­ter­ing the High Court clad in mil­i­tary re­galia, with their faces cov­ered in bal­a­clavas and overly armed with lethal ma­chine­guns as if though they were pre­par­ing for war.

Within sight of this hor­ren­dous or­deal was a man also dressed in mil­i­tary re­galia, hand­cuffed and man­a­cled in chains and openly mov­ing in ag­o­nis­ing pain which later un­rav­elled to have been in­sti­gated at the be­hest of his col­leagues af­ter hav­ing been se­verely tor­tured.

For the next two to three weeks, a trail of sim­i­lar in­ci­dences be­came com­mon ground in the High Court of Le­sotho. It is within this con­text of an openly un­sta­ble en­vi­ron­ment of con­sti­tu­tion­al­ism and democ­racy that the na­tion be­moaned the state of af­fairs pre­vail­ing in the cur­rent regime that a supra-na­tional in­ter­ven­tion was sought.

I know, and nei­ther can I re­call of any other fac­tor that prompted the SADC (South­ern African de­vel­op­ment Com­mu­nity) in­ter­ven­tion not un­less I am re­li­ably ad­vised oth­er­wise.

The of­fi­cial pub­li­ca­tion of the gazette that ar­tic­u­lates the terms of ref­er­ence of the com­mis­sion of en­quiry that fol­lowed an ex­tra­or­di­nary SADC sum­mit has sev­eral fea­tures which are wor­thy of elab­o­rate dis­cus­sion.

The com­mis­sion is chaired by Botswana-born Mr Jus­tice Mpa­phi Phumaphi, a man who boasts the UBLS (and later N.U.L.) as his alma mater and a for­mer class­mate of mine in my early years of schol­ar­ship.

It is clearly styled as a pe­cu­liar ad hoc com­mis­sion which boasts se­nior mem­bers of the mil­i­tary and po­lice from our neigh­bour­ing coun­tries. To give it a gloss of some trans­parency there are two seats re­served for civil­ians.

In the first place, the ma­jor cri­tique that one can stage against the es­tab­lish­ment of this com­mis­sion lies in the fact that this com­mis­sion is noth­ing but a white ele­phant with no ju­di­cial pow­ers.

The Min­is­ter of Po­lice did not miss the mo­ment, in this re­gard, by con­fi­dently as­sur­ing his sup­port­ers of this glar­ing fact sub­se­quent to the de­ci­sion of its es­tab­lish­ment.

Quite apart from this glar­ing re­al­ity is the ques­tion of the un­nec­es­sary and bur­den­some ex­pense which is to be borne by the taxpayers of this eco­nom­i­cally frag­ile coun­try.

The past ex­pe­ri­ences of com­mis­sions of a sim­i­lar na­ture did not do much but to pacify the na­tion and to strate­gi­cally mull po­lit­i­cal di­a­logue which has been sparked by bad de­ci­sions made by my po­lit­i­cal col­leagues.

A case in point is the Leon com­mis­sion which later led to the in­sti­tu­tion of lit­i­ga­tion by an in­cum­bent judge com­plain­ing about cer­tain as­pects of the com­mis­sion’s find­ings which openly at­tacked her pro­fes­sional cred­i­bil­ity and in­ci­den­tally en­croach­ing on the sacro­sanct dy­nam­ics of the sep­a­ra­tion of pow­ers doc­trine by il­lus­trat­ing the Prime Min­is­ter’s open at­tempt to chal­lenge and at­tack the ju­di­cial de­ci­sions in an ex­tra-cu­rial plat­form.

History seems to be re­peat­ing it­self and we do not seem to be learn­ing from our past ex­pe­ri­ences. This ap­proach ev­i­dently seems to be rein­vent­ing it­self in the present con­text be­cause as its port of call, Sec­tion 3 (1) (a) of the gazette pro­vides that the com­mis­sion shall in­quire into var­i­ous changes in the top lead­er­ship of the courts, such as the ap­point­ment of a new Pres­i­dent of the Court of Ap­peal, on their le­git­i­macy and abil­ity to tackle the var­i­ous crim­i­nal and civil is­sues that have or will come be­fore them in re­la­tion to the is­sues be­fore the com­mis­sion.

The gen­uine­ness of this in­quiry is left to doubt mainly be­cause the ap­point­ment of the Pres­i­dent of the Court of Ap­peal is not the only one that was put in mo­tion by the pre­vi­ous regime — even that of the in­cum­bent Chief jus­tice was made by the same gov­ern­ment of which I was ev­i­dently a party.

The se­lec­tive man­ner of deal­ing with ju­di­cial ap­point­ments that were car­ried out by the pre­vi­ous re- gime leaves a lot to doubt over the gen­uine­ness of the en­quiry to the ex­tent that one can safely draw a con­clu­sion of po­lit­i­cal bias and dou­ble stan­dards.

What makes it even worse is the fact that the is­sue of the ap­point­ment of the judge pres­i­dent was put to rest af­ter the at­tor­ney gen­eral’s (sup­ported by the deputy prime min­is­ter) un­suc­cess­ful bid to have him re­moved from of­fice in the Court of Ap­peal.

It is per­haps a de­bate for le­gal scholars and an­a­lysts to in­ter­ro­gate the pro­pri­ety of this term of ref­er­ence and the most likely con­sti­tu­tional odd­i­ties which it may ne­ces­si­tate.

The ques­tion be­ing: whether the Prime Min­is­ter has the pow­ers to es­tab­lish a com­mis­sion (which does not even have ju­di­cial pow­ers for that mat­ter) that seeks to in­ter­ro­gate an is­sue that has al­ready been laid to rest by the most su­pe­rior court in the land.

It can safely be ar­gued that this ini­tia­tive is noth­ing but an at­tempt by the gov­ern­ment to strate­gi­cally sub­ject the ap­point­ment to po­lit­i­cal scru­tiny and to sub­ject the dec­o­rated judge pres­i­dent of the Court of Ap­peal to the court of public opin­ion af­ter its failed at­tempts to have the man re­moved through le­gal means.

I can only an­tic­i­pate a strong con­sti­tu­tional chal­lenge to this pro­posed en­deav­our. Fur­ther afield, Sec­tion 3 (1) (b) of the same gazette seeks to in­ter­ro­gate the pre­vi­ous regime’s at­tempt to have the di­rec­tor of Public Pros­e­cu­tion and the At­tor­ney Gen­eral re­moved from of­fice.

The real value and rel­e­vance of this en­quiry is of no con­se­quence be­cause both of­fi­cers’ ap­point­ments are still in­tact fol­low­ing the for­mer’s suc­cess­ful chal­lenge in the Court of Ap­peal. The en­quiry in this con­text is geared to­wards serv­ing a po­lit­i­cal pur­pose and noth­ing more.

It may well serve the pur­pose of po­lit­i­cally de­mon­is­ing the pre­vi­ous regime for their at­tempts to have the said of­fi­cers re­moved but is it re­ally nec­es­sary when the courts of law have al­ready pro­nounced them­selves on the is­sue?

The odd­i­ties and per­haps le­gal chal­lenges which may oth­er­wise flow from the gazette are fur­ther ex­em­pli­fied by Sec­tion 3 (1) (c) and (d) — both of which seek to in­quire into the ‘law­ful­ness’ of the re­moval the two con­tro­ver­sial com­man­ders of the Le­sotho de­fence Force (LDF).

It is per­haps sig­nif­i­cant to in­di­cate that the in­cum­bent com­man­der of the LDF never chal­lenged his re­moval from the com­mand of the LDF and no ju­di­cial pro­nounce­ment over the is­sue was made.

The other ap­pointed com­man­der, who is now late, sought to chal­lenge his re­moval and he met his death while the mat­ter was still sub ju­dice.

The real chal­lenge with this ap­proach is that the com­mis­sion is now en­dowed with ‘ju­di­cial pow­ers’ to in­quire into the law­ful­ness of the re­movals of the ri­val com­man­ders when it is ad­mit­tedly not a ju­di­cial body as con­tem­plated un­der the con­sti­tu­tion of Le­sotho and nei­ther can one con­clude that SADC would seek to en­dow it­self of supra- ju­di­cial pow­ers over an in­de­pen­dent and sov­er­eign state like Le­sotho.

This is par­tic­u­larly moreso when the same body (SADC) led by the same lead­ers who are now me­di­a­tors, was in­stru­men­tal in the col­lapse of the SADC Tri­bunal, a body which even though it was po­lit­i­cally branded as im­pe­ri­al­ist, was go­ing to serve a very good pur­pose of sub­ject­ing tyran­nous gov­ern­ments to scru­tiny. We openly see a dis­play of hypocrisy and dou­ble stan­dards in the me­di­a­tion ef­forts of deputy Pres­i­dent Cyril Ramaphosa.

To add fur­ther salt to the wound, the sub­se­quent sec­tions of the gazette seek to en­dow the com­mis­sion with the man­date of en­quir­ing into the events of 30 Au­gust 2014.

This ef­fec­tively means the com­mis­sion is now sub­sti­tut­ing it­self for the Le­sotho Mounted Po­lice Ser­vice and now seiz­ing crim­i­nal in­ves­tiga­tive pow­ers and even as­sum­ing the gov­ern­ment has con­sented to this av­enue — what is go­ing to be­come of the find­ings of the com­mis­sion in this re­spect when an in­flu­en­tial mem­ber of Cab­i­net and min­is­ter of Po­lice has al­ready pub­licly and cat­e­gor­i­cally stated that the com­mis­sion does not have pros­e­cu­to­rial pow­ers?

The Prime Min­is­ter him­self pub­licly ‘ thanked’ the mil­i­tary for his re-as­sump­tion of power and the con­text in which this was said was largely crit­i­cised in some quar­ters.

The glar­ing re­al­ity is that the cur­rent gov­ern­ment is by all means com­pro­mised and in­clined to adopt an el­e­ment of in­er­tia and aloof­ness when the mil­i­tary en­gages in all of its atro­cious ac­tiv­i­ties be­cause it is a prod­uct of the 30th Au­gust events.

The na­tion is at odds with it­self as a con­se­quence of the event that cul­mi­nated on that given day. The gov­ern­ment has al­ways been in de­nial over the in­ter­pre­ta­tion and mean­ing of the events of the day and de­lib­er­ately and per­haps con­ve­niently so.

The man­ner in which the terms of ref­er­ence are framed in this re­spect is thinly worded to ac­com­mo­date the gov­ern­ment’s view in­stead of be­ing framed in a broad­based all-em­brac­ing man­ner that seeks to delve into the root cause of the is­sues in­volved.

What the par­tic­i­pants of the rul­ing gov­ern­ment are not aware of is that the King­dom of Le­sotho is not a demo­cratic state led by civil­ian au­thor­ity but a mil­i­tary state. The re­la­tion­ship be­tween the cab­i­net and the mil­i­tary shall re­main ten­u­ous for as long as the re­la­tion­ship of con­ve­nience sus­tains.

For the fact that the Prime Min­is­ter, in his own words, ac­knowl­edges that he has been re­in­stated by the mil­i­tary clearly means that he is just a front and a rub­ber stamp.

The Prime Min­is­ter did not even ad­dress the na­tion him­self fol­low­ing the demise of the for­mer com­man­der and re­mains a mys­tery why that was not the case when the na­tion was clearly on its knees at the ma­te­rial time.

The painful re­al­ity is that Le­sotho is a mil­i­tary regime and not a democ­racy at all. As if this was not well un­der­stood, the Prime Min­is­ter’s newly ap­pointed po­lit­i­cal ad­vi­sor, who is ‘iron­i­cally’ the for­mer chair­man of the In­de­pen­dent Elec­toral Com­mis­sion, con­firmed this state of af­fairs in not so many words when he in­di­cated to a for­eign broad­caster that the army in the small King­dom is ‘in­de­pen­dent’.

This po­si­tion or view was fur­ther sanc­tioned by the in­cum­bent Min­is­ter of de­fence and Se­cu­rity.

How ex­actly can it be ex­pected that an in­sti­tu­tion that has ac­cess to ‘vi­o­lence’ should func­tion in­de­pen­dently from civil­ian rule which is sanc­tioned un­der the con­sti­tu­tion of the land, de­fies logic es­pe­cially in cir­cum­stances where the said army openly flaunts atro­cious acts of tor­ture on its mem­bers.

In the ul­ti­mate anal­y­sis, the re­al­ity is that this com­mis­sion, in­stead of mend­ing the wounds of wounded sec­tions of so­ci­ety, ef­fec­tively pro­motes anger and frus­tra­tion upon them.

The price of rec­on­cil­i­a­tion in this small coun­try can only be achieved if it is bal­anced with jus­tice. The tears of the re­spec­tive wid­ows of a se­cu­rity guard and po­lice­man who died when the army was on its toll are still ev­i­dent on their cheeks.

This is not to men­tion the bru­tal killing of the for­mer com­man­der and the de­tained sol­diers who were equally tor­tured. The value of the lives lost and the painful tor­ture per­pe­trated upon mil­i­tary mem­bers cur­rently in de­ten­tion can­not be com­pen­sated by any­thing un­der the sun.

Be­yond our po­lit­i­cal af­fil­i­a­tions as politi­cians ei­ther in gov­ern­ment or in op­po­si­tion, we all have to re­mem­ber our moral obli­ga­tion of driv­ing this na­tion for­ward and that can­not be achieved with this cur­rent state of law­less­ness pre­vail­ing in this coun­try.

At this rate, it is em­bar­rass­ing for any­one to proudly pro­claim pa­tri­o­tism when a na­tion is ev­i­dently on a down­ward slide mainly be­cause of our self­ish in­ter­ests as politi­cians.

THE writer ar­gues that Lieu­tenant Gen­eral Tlali Kamoli (left), seen here with SA Deputy Pres­i­dent Cyril Ramaphosa in this March file pic, never chal­lenged his re­moval from the com­mand of the LDF.

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