SADC Commission of Inquiry
… a circuitous and endless escape route
I want to put this on record as a prologue to those readers who might not be conversant with the protocol of journalism. Please be warned the following is not the opinion of this newspaper nor that of its publisher or readers.
Subsequent to the brutal and unfortunate assassination of Lieutenant General Maaparankoe Mahao, former Commander of the Lesotho Defence Force (LDF), in broad daylight outside his ancestral home of Mokema just outside Maseru, the Southern African Development Community (SADC) Double Troika Summit met in Pretoria, South Africa, and recommended the establishment of a Judicial Commission of Inquiry into, among others, the circumstances surrounding the slaying of the General, the removal, the legality of appointment, re-instatement of recent and incumbent Commander of the LDF and the circumstances surrounding the alleged coup of 30th August 2014.
Following much speculation surrounding the establishment of the Commission, I waited patiently until it was set in motion before I could venture an opinion on its propriety.
Let me start from these premises. The Constitution of Lesotho, 1993, Section 118 (1) provides categorically that ‘Judicial power shall be vested in the Courts of Lesotho which shall consist of — (a) Court of Appeal (b) High Court (c) Subordinate Courts and Courts-martial and (d) such tribunals exercising a judicial function as may be established by Parliament’. Further, the law also establishes a Constitutional Court in matters that need the interpretation of the Constitution and therefore impinge on the Supreme Law.
Section 99 of the Constitution then estab- lishes the office of the Director of Public Prosecutions (DPP) in the Public Service, whose powers shall be, if he deems desirable so to do, ‘a) to institute and undertake criminal proceedings against any person before any court (other than a court-martial) in respect of any offence alleged to have been committed by that person’. Subsequent sections are also relevant but I cannot quote them here due to lack of space.
Section 146 (1) establishes the Defence Force ‘for the maintenance of internal security and defence of Lesotho’. This section has to be read with the Lesotho Defence Force Act1996 but for reasons stated above, I will not reproduce this Act, save to note that it is also instructive.
Further, Section 147 (1) also establishes the ‘Police Force for Lesotho (later called Police Service) that shall be responsible for the maintenance of law and order in Lesotho and shall have such other functions as may be prescribed by an Act of Parliament’.
This Act of Parliament is the Police Act, 1998, I also cannot, for similar reasons, reproduce this piece of legislation. Then there is the Office of the Directorate of Economic Offences (DCEO) Act, which establishes the DCEO to investigate and institute economic proceedings through the DPP against alleged offenders.
I am citing these pieces of legislation and institutions to demonstrate clearly that Lesotho has the institutional and legislative capacity to investigate and prosecute alleged perpetrators of criminal offences. Further, if there are alleged constitutional violations or need for constitutional interpretations, then there is the Constitutional Court.
If litigants to all these courts are dissatisfied with the verdict of the courts below them ,there is the hierarchical structure of the courts up to the Court of Appeal. Lesotho is very fortunate to have a robust and transparent legal (court) hierarchy that is self-cleansing, like all modern constitutional democracies throughout the world.
If, for any reason, a certain section of the population or a political formation is dissatisfied with the provision of the Constitution or needs an amendment of the Constitution, then resort can be had to Section 85 of the Constitution, which thankfully is very comprehensive. The problem with Lesotho is not with the Constitution but the major role-players and again not all of them, as well as the political leadership.
Let us not pass the buck, be disingenuous and lay blame where it does not belong. Our problems are simple and the solution lies in us as the Basotho. It lies in the psyche of our political leadership. No matter how many constitutional amendments/alterations we make or repeal entirely the old Constitution, political problems of this nation will persist and remain as long as we have self-serving and bigoted politicians.
The solution that is viable, sustainable and affordable to the political problems of this national lies not in the SADC, Phumaphi Commission or any other foreign intervention but the calibre, pedigree and psyche of our political leaders. We need politicians who own-up to certain responsibilities and misconduct. We need politicians who commit themselves to the rule of law and abide by the will of the majority of the citizenry.
By way of a digression, rule of law is the legal principle that law should govern a nation and not individual government officials. It primarily refers to the influence of and authority of the law within society, particularly as a constraint upon the behaviour of government officials.
The principle implies that every citizen is subject to the law, including law akers themselves. It stands in stark contrast to the idea that the ruler is above the law. No branch of government is above the law, and no public official may act arbitrarily or unilaterally outside the law.
It goes further that no written law or unwritten law may be enforced by the government unless it conforms with certain unwritten, universal principles of fairness, morality and justice that transcend human legal systems.
For starters, the Commission is not above the Courts of law of the country. For instances, how does one Judge and his fellow commissioner who are mostly high-ranking soldiers and police officers who have no legal training and experience whatsoever, determine the legality and propriety of the appointment of the President of the Court of Appeal that was
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reached at by a full bench of five very reputable international judges?
Further, during the habeas corpus application before the high Court, the LDF, to a jam-packed courtroom, under oath, admitted to killing Lt General Mahao.
What is left frankly, is for the police to kick-start their investigations and present the docket to the DPP for appropriate action as he deems fit.
The difficult part for the trial court in this regard has been done, I humbly submit, by this categorical admission at the habeas corpus application.
Further, the law and convention is very clear and there is a plethora of precedence in this regard, that if a litigant feels aggrieved by the action of some authority, in this instance the Prime Minister, to remove him from office, such as position of the Commander of the LDF, he ought to approach the courts to rule on the legality or otherwise of the removal.
There is ample precedent in this regard; we need not go further than the celebrated DPP’S, Attorney-general’s and President of the Court of Appeal cases.
These cases have finally been settled by the highest court in the land. Why establish a commission for this? No one knows.
As for the alleged mutiny against the LDF Command, why also set-up a commission for a matter that is purely within the province of the courts of law? Why go for another forum?
The fact is pure and simple; instruct the Military Intelligence, Criminal Investigating Authority (CID) and the National Security Service, whichever is the appropriate competent state agency to investigate, then if there are charges to be preferred, evidence be led before a court-martial and then all legal avenues be tested and appropriate verdicts handed-down. Why the need of a Commission?
Further, in regard to the alleged coup of 30th August 2014, there are two distinctly different versions and interpretations to what actually happened but I believe, wrongly or rightly, that all the major role-players in this incident are known to the relevant authorities.
What is left is for the veracity of each version to be tested in a competent court of law and the determination of whether it was a coup and therefore warrants a conviction or a legitimate exercise to foil an alleged commission of an offence as alleged, on either side of the spectrum. Why establish a Commission when all the institutional interventions are there? Baffling!
Further, in regard to the existence of warrants of arrest for the eight soldiers implicated in the bombings of three Maseru homes, this is a factual basis that has to be established before a court of law.
Again, why establish a Commission? All these scenarios point to duplication and I dare say, a circuitous exercise because Commissions are, with all due respect to the institutions, putting a huge strain on the fiscus, time-consuming and might end-up not, as one government minister puts it, having “prosecutable” offences.
Granted, this Commission has attracted a lot of international attention but this is no guarantee that the recommendation/findings of these Commissioners will be implemented.
They are purely advisory, government might decide not to implement them. This much was confirmed by SADC facilitator and South Africa’s Deputy President Cyril Ramaphosa, in his live interview which was simulcast on two national radio stations, who reiterated that SADC’S role was purely advisory and not binding on member-countries. Further, past experiences with Commissions have demonstrated, I have in mind the Leon and Langa Commissions, that governments, particularly under the incumbent Prime Minister, have been a mere farce.
Perhaps critically also, what will government do if the Commission finds or recommends that one of its own or its operatives is to be prosecuted or dealt with disciplinarily? My take is that no action will be taken.
Therefore, the Commission will be a monumental failure. Will the Commission be a waste of time, finances, and other resources? Yes!
The only positive that we can draw from the Commission will be that the truth will have come out for the world and the nation to know what really transpired.
As to whether it will pave the way for a positive future for this impoverished and traumatised nation, the jury is still out. Period!!!