COM­MIS­SION RE­JECTS LDF RE­QUEST

. . . as army pushes for re­moval of three terms of ref­er­ence

Lesotho Times - - Front Page - Lekhetho Nt­sukun­yane

THE South­ern African De­vel­op­ment Com­mu­nity (SADC) Com­mis­sion of In­quiry into Le­sotho’s in­sta­bil­ity has re­jected a last minute re­quest by the Le­sotho De­fence Force (LDF) to al­ter its terms of ref­er­ence and avoid deal­ing with three items the army is not happy appy with.

The LDF had asked for le­gal rep­re­sen­ta­tion­tion at the in­quiry as well as be­ing treated ass an in­sti­tu­tion with­out in­di­vid­ual mem­bers be­ing eing sin­gled out. It also wants all the wit­nesses es to be in­ter­viewed pub­licly and the com­mis­sion­sion to avoid deal­ing with the is­sue of the mutiny.iny.

The nine-mem­ber team ap­pointed by SADC ADC to in­ves­ti­gate cir­cum­stances sur­round­ingding the as­sas­si­na­tion of for­mer Le­sotho De­fence ence Force (LDF) Com­man­der Maa­parankoe Ma­hao fi­nally be­gan its in­quiry in Maseruu on Mon­day af­ter what ap­peared to be a pro­trac­tacted de­lay.

The head of the com­mis­sion, Jus­tice stice Mpathi Phumaphi, started off by ad­dress­ings­ing the LDF’S ap­pli­ca­tion, which was madee by its ad­vo­cate gen­eral, Colonel Bu­lane An­drewrew Sechele. In the ap­pli­ca­tion, the army re­questested le­gal rep­re­sen­ta­tion dur­ing the in­quiries,ries, ar­gu­ing that “it is com­mon course (sic) that (the) LDF is a le­gal per­son”.

“It is our hum­ble sub­mis­sion that legale­gal rep­re­sen­ta­tion in this re­gard would largely gely as­sist the com­mis­sion to reach a bal­anced nced anal­y­sis on the facts to be pre­sented,” said Colonel Sechele.

“It is our con­sid­ered view that it wouldd be im­per­a­tively im­por­tant for us to be af­ford­e­drded a chance to chal­lenge (un­der cross-ex­am­i­ami­na­tion) any piece of fact stated against the LDF.”

The army also asked the com­mis­sion not to give any wit­nesses the op­tion to tes­tify in cam­era, ar­gu­ing that, be­cause of the po­lit­i­cal sit­u­a­tion, “some peo­ple are able to pub­licly state un­founded al­le­ga­tions against the LDF”.

“. . . in this re­gard, they might hide be­hind the is­sue of be­ing af­forded an op­por­tu­nity to present their ev­i­dence in cam­era with­out any jus­ti­fi­ca­tion as re­quired by the law as in­di­cated,” the LDF said.

Colonel Sechele also called on the com­mis­sion to omit its in­quiry into the al­leged mutiny within the LDF, ar­gu­ing that it would be deal­ing with the same “sub­ject mat­ter’ as the court mar­tial whose pre­lim­i­nary hear­ings would be held from 14 to 18 Septem­ber 2015.

“It is com­mon cause that the two bod­ies are crea­tures of the law duly re­quired to be in­ter­de­pen­dent in car­ry­ing out their man­date,” he said.

“In de­ter­min­ing the is­sues be­fore them, they use dif­fer­ent stan­dards of proof. The com­mis­sion uses bal­ance of prob­a­bil­ity while the court mar­tial uses proof be­yond rea­son­able doubt.”

Colonel Sechele ar­gued that the two bod­ies “might come to dif­fer­ent find­ings on this is­sue of mutiny”.

“(This is) a mat­ter which we re­spect­fully be­lieve may not be an in­tended one. And a mat­ter which will bring ev­er­last­ing un­cer­tainty on the part of the ac­cused/de­tained per­sons,” he said.

The ad­vo­cate gen­eral said the pros­e­cu­tion and de­fence in the Court Mar­tial would suf­fer “ir­repara­ble prej­u­dice” should both pro­cesses run con­cur­rently.

He sug­gested that the com­mis­sion could wait for the Court Mar­tial to deal with the al­leged LDF mutiny and then pro­ceed there­after. How­ever, Col Sechele then ar­gued that it was not fea­si­ble say­ing: “Our hum­ble sub­mis­sion is that the time frame given to the com­mis­sion is ob­vi­ously too lim­ited for such con­sid­er­a­tion.

“Be­sides, we re­it­er­ate that the two bod­ies might make two con­tra­dict­ing find­ings, a re­sult which none of the two would ap­pre­ci­ate but to the detri­ment of mainly the ac­cused/ de­tained per­son.”

Col Sechele went on to warn that if their sub­mis­sion was dis­missed, the LDF would not co­op­er­ate on the is­sue of the mutiny with the com­mis­sion.

“We would not, with great­est re­spect, lead any ev­i­dence per­tain­ing to the is­sue of mutiny be­fore the com­mis­sion on the fear of the stated ob­ser­va­tions and sub­mis­sions above,” he said.

He asked the com­mis­sion to probe the army’s con­duct as an in­sti­tu­tion and not look into the crim­i­nal li­a­bil­ity of in­di­vid­ual of­fi­cers. This is de­spite the gov­ern­ment is­su­ing a gazette dated 21 Au­gust 2015 high­light­ing that Bri­gadier Ma­hao’s killers should be held ac­count­able for their ac­tions.

“The Com­mis­sion will as­sist in the iden­ti­fi­ca­tion of any per­pe­tra­tors with a view to en­sur­ing ac­count­abil­ity for those re­spon­si­ble for the death of Bri­gadier Ma­hao,” reads the gazette.

“The Com­mis­sion will also in­ves­ti­gate whether se­cu­rity forces used ex­ces­sive force when ap­pre­hend­ing Bri­gadier Ma­hao, the im­me­di­ate cir­cum­stances lead­ing to his death and those around his ad­mis­sion to hos­pi­tal.”

How­ever, Col Sechele sub­mit­ted that: “Our hum­ble un­der­stand­ing is that, his­tor­i­cally and prac­ti­cally, com­mis­sions of this na­ture are meant to look into the con­duct of the in­sti- tu­tions, in this re­gard LDF, not in­di­vid­u­als.

“To do oth­er­wise, we sub­mit, might ap­pear as if the do­mes­tic in­sti­tu­tions cre­ated to look into the crim­i­nal li­a­bil­ity of the in­di­vid­u­als are be­ing un­nec­es­sar­ily un­der­mined.”

As a “per­ti­nent” ex­am­ple, he re­ferred to the case of the wild­cat strike by min­ers in Marikan kana, South Africa.

““. . . His Lord­ship (Judge Ian Gor­don) Far­lam (chair­per­son of the Marikana Com­mis­sion sion) was never in­vited to as­sist in the iden­ti­fic tifi­ca­tion of any po­lice of­fi­cers who had been the ac­tual peo­ple who pulled the trig­gers in tha that in­ci­dent which led to the deaths of ap­pro prox­i­mately 44 peo­ple,” Col Sechele said.

““Sim­i­lar to our case, that was an au­tho­rise rised op­er­a­tion but of which it has never been the in­ten­tion of those in au­thor­ity that death wou would en­sue, sim­i­lar to that in­ci­dent of Marikan kana. In this re­gard, there­fore, we humbly pra pray that crim­i­nal li­a­bil­ity of any in­di­vid­ual me mem­ber in our case be left in the hands of the dom do­mes­tic en­ti­ties.”

H He also warned that if the LDF’S sub­mis­sion was not up­held, they would “not be ready to i in­crim­i­nate any of our mem­bers”. ““Our sub­mis­sion is founded on the right against self-incrimination,” said Col Sechele.

How­ever, the com­mis­sion shot down the LDF’S ap­pli­ca­tion on grounds that it was “un­mer­i­to­ri­ous”. In his re­sponse on the is­sue of wit­nesses, Jus­tice Phumaphi said the com­mis­sion had the fi­nal dis­cre­tion on whether they can tes­tify in public or in cam­era “af­ter sat­is­fy­ing it­self that there are rea­son­able grounds”.

“The in­vi­ta­tion of the wit­nesses to in­di­cate whether they want to give ev­i­dence in public or in cam­era is to en­sure that they know that the op­tion is avail­able in terms of the (Public En­quiries) Act,” said Jus­tice Phumaphi.

This was par­tic­u­larly per­ti­nent in this in­quiry, he noted, be­cause some of the pos­si­ble wit­nesses were in cus­tody.

“As a mat­ter of fact, one of the wit­nesses listed in the list of the LDF wit­nesses, has in­di­cated his de­sire to give ev­i­dence in cam­era,” Jus­tice Phumaphi said.

“The Com­mis­sion is yet to hear his rea­sons, and if it is sat­is­fied that there are good rea­sons why he should tes­tify in cam­era so it shall be. The same shall go for any other wit­ness who has rea­son to feel that he/she has to give ev­i­dence in cam­era.”

On the army’s re­quest for the com­mis­sion to avoid deal­ing with the al­leged mutiny, Jus­tice Phumaphi said there ap­peared to be a de­lib­er­ate de­lay in fa­cil­i­tat­ing the start of com­mis­sion’s work, “un­til such time it was de­cided to pro­ceed with the court mar­tial”.

“It there­fore fol­lows that the con­tem­po­rane­ity of pro­ceed­ings of the com­mis­sion and the court mar­tial was a re­sult of the de­ci­sion to start courts mar­tial, whilst at the same time it was clear that a le­git­i­mate in­quiry was go­ing on, deal­ing in­ter alia, with what the court mar­tial would be deal­ing with,” said Jus­tice Phumaphi.

“In the re­sult, we find that the dilemma of both the com­mis­sion and the court mar­tial run­ning par­al­lel is self-cre­ated by gov­ern­ment and there­fore the sub­mis­sions are dis­missed as un­mer­i­to­ri­ous.”

The LDF’S re­course, he said, would be the chair of or­gan on Pol­i­tics, De­fence, and Se­cu­rity Co­op­er­a­tion, Mozam­bique Pres­i­dent Filipe Nyusi, who had the au­thor­ity to leave out the three terms of ref­er­ence.

“It is to be noted that the gov­ern­ment of Le­sotho, through le­gal no­tice No. 88 of 2015, gazetted terms of ref­er­ence for the com­mis­sion and it is by those terms that the com­mis­sion shall op­er­ate,” Jus­tice Phumaphi said.

“In any event, ev­ery com­mis­sion does its work ac­cord­ing to its terms of ref­er­ence.”

On the is­sue of prob­ing the LDF as an in­sti­tu­tion, he said there was no way the army could be in­ves­ti­gated re­gard­ing the slay­ing of its for­mer head with­out in­ves­ti­gat­ing the con­duct of those who were de­tailed to ar­rest him. He said the LDF could only act through its agents “who nor­mally are its em­ploy­ees”.

“It there­fore, fol­lows that, its li­a­bil­ity vi­car­i­ous or oth­er­wise, must de­rive of ne­ces­sity, from the ac­tions of its em­ploy­ees or other agents,” Jus­tice Phumaphi said.

“As a corol­lary to the afore­go­ing, an in­ves­ti­ga­tion of the LDF, ipso facto en­tails an in­ves­ti­ga­tion of the ac­tions of its agents. In the cir­cum­stances, there is no way the LDF can be in­ves­ti­gated con­cern­ing the death of Bri­gadier Ma­hao with­out in­ves­ti­gat­ing the con­duct of those who were de­tailed to ar­rest him.”

Colonel Bu­lane An­drew Sechele.

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