SADC Com­mis­sion of In­quiry

… a cir­cuitous and end­less es­cape route

Lesotho Times - - Opinion & Analysis - Ut­loang Ka­jeno

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

Con­tin­ued on page 20. . .

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!!!

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