What’s the SADC Com­mis­sion of In­quiry?

Lesotho Times - - Opinion & Analysis - So­fonea Shale

The SADC Com­mis­sion of In­quiry into the cir­cum­stances sur­round­ing the death of for­mer Le­sotho De­fence Force com­man­der, Maa­parankoe Ma­hao, is a very sig­nif­i­cant com­po­nent of the re­gion’s in­ter­ven­tion in the King­dom.

Although SADC’S in­ter­ven­tion in Le­sotho has and con­tin­ues to be elit­ist, ex­clu­sion­ary and there­fore sys­tem­at­i­cally and tech­ni­cally dis­en­abling pop­u­lar sovereignty, there is gen­eral con­sen­sus among elites and cit­i­zens that the Com­mis­sion of In­quiry is an im­por­tant mea­sure though for di­verse rea­sons. When peo­ple re­fer to this in­quiry as the Phumaphi Com­mis­sion, one may think they know it but lis­ten­ing to some com­ments, ex­pres­sions and also ex­pec­ta­tions, what re­mains crit­i­cal is the ques­tion: What is the SADC Com­mis­sion of In­quiry?

Un­scrupu­lous politi­cians in­su­late them­selves from public con­trol through hold­ing in­for­ma­tion from cit­i­zens. Some­times in­for­ma­tion does not reach cit­i­zens be­cause those who have it be­gin to en­gage in so­phis­ti­cated con­tes­ta­tions, thus turn­ing cit­i­zens into mere spec­ta­tors or blind fol­low­ers of ac­tors. This is what con­sti­tutes elit­ist and ex­clu­sion­ary pro­cesses. With­out in­for­ma­tion, cit­i­zens may not be able to en­gage lead­ers ef­fec­tively and when they try, they would al­ways be ridiculed for act­ing from a wrong premise. In a sim­i­lar man­ner, for ro­bust en­gage­ment and in­formed de­bate on na­tional is­sues in­clud­ing form­ing ex­pec­ta­tions of the Phumaphi Com­mis­sion, the ques­tion which should be mas­tered is what this SADC Com­mis­sion of In­quiry is. Some peo­ple see this Com­mis­sion as yet another false start. They are wor­ried that while Jus­tice Mpa­phi Phumaphi and his team may re­main pro­fes­sional in con­duct, the buck stops at po­lit­i­cal level. For those who heard the honourable Min­is­ter of Po­lice say­ing the Com­mis­sion will not gen­er­ate pros- ecutable ma­te­rial, those who read the Public In­quiries Act, 1994 Sec­tion 8(3) that the Prime Min­is­ter may with­hold any por­tion of the Com­mis­sion’s re­port if, in his or her opin­ion, na­tional se­cu­rity, the pri­vacy of an in­di­vid­ual and or right of a per­son to a fair trial out­weigh public in­ter­est and those who saw SADC mis­man­ag­ing the much-an­tic­i­pated and un­der­stand­ably pro­fes­sion­ally con­ducted and well-writ­ten Langa Com­mis­sion re­port, Phumaphi is seen as a pro­fes­sional who is likely to re­main firm but for no ul­ti­mate good.

For this group, the SADC In­quiry will only be able to ex­pose but politi­cians will al­ways call the shots. There are also some peo­ple who see the Phumaphi Com­mis­sion as a friendly, good-spir­ited and harm­less body which can­not get any­thing it may want ex­cept that which wit­nesses may be will­ing to give. Other peo­ple be­lieve the Com­mis­sion will be able to tell who killed Ma­hao and why. These are peo­ple who be­lieve that this Com­mis­sion will ex­pose the hid­den truths and force gov­ern­ment to be as­sertive. There is also an in­no­cent ex­pec­ta­tion that Phumaphi will tell who the right­ful com­man­der of the Le­sotho De­fence Force is and some­how in­struct Le­sotho politi­cians to be­have in a par­tic­u­lar way. Phumaphi, for oth­ers, is a panacea for Le­sotho’s po­lit­i­cal de­te­ri­o­ra­tion, in­clud­ing the cen­tral­ity of the army in the po­lit­i­cal history of the King­dom. But what is the SADC Com­mis­sion of In­quiry?

On 3 July 2015, the SADC Dou­ble Troika sat in Tsh­wane in South Africa and de­cided, among oth­ers, to es­tab­lish a Com­mis­sion of In­quiry into cir­cum­stances sur­round­ing the death of the for­mer LDF com­man­der, so it is a SADC crea­ture. This was fol­lowed by Le­gal No­tice 75 of 2015 which es­tab­lished a Com­mis­sion of In­quiry on dis­tur­bances to na­tion- al peace and sta­bil­ity. The de­sire of politi­cians, both in and out­side gov­ern­ment, to ex­tend the man­date of the com­mis­sion be­yond the SADC Dou­ble Troika de­ci­sion was halted by the re­gional body which set aside what the gov­ern­ment had al­ready gazetted and pro­posed is­sues by the op­po­si­tion. Le­gal No­tice 75 (as amended by Le­gal No­tice 88) Sec­tion 4 pro­vides for the re­port­ing to be done di­rectly to the Chair of the SADC Or­gan on Pol­i­tics, De­fence and Se­cu­rity Co­op­er­a­tion and not the Prime Min­is­ter. While this re­moves sus­pi­cion on the po­ten­tial ap­pli­ca­tion of Sec­tion 8(3), which in view of oth­ers, un­fairly po­si­tions the Prime Min­is­ter over his coun­ter­parts, it is not yet clear whether Sec­tion 4 of Le­gal No­tice 75 is le­gal. While Ar­ti­cle 3(2) of the SADC treaty, to which Le­sotho is party, stip­u­lates that SADC has the le­gal ca­pac­ity nec­es­sary to ex­er­cise its func­tions within the ter­ri­tory of mem­ber-states, do­mes­ti­ca­tion is manda­tory for in­ter­na­tional agree­ments to be ap­pli­ca­ble in the King­dom. This ex­plains why the Prime Min­is­ter had to op­er­a­tional­ize the SADC de­ci­sion by in­vok­ing Sec­tion 3(1) of Public In­quiries Act to es­tab­lish the Com­mis­sion. Ar­gu­ing from the premise that the Phumaphi Com­mis­sion is a le­gal process es­tab­lished un­der this law, its re­port­ing can­not log­i­cally there­fore be out­side the con­fines of the law which es­tab­lishes it. The Prime Min­is­ter is not, at least by this law, em­pow­ered to des­ig­nate another per­son to whom the Com­mis­sion may re­port. how is this ex­plained in le­gal terms? Is it le­gal for Phumaphi to re­port to Gaborone? In other words, is the Public In­quiries Act ad­e­quate to guide the Phumaphi Com­mis­sion con­sid­er­ing po­lit­i­cal re­al­i­ties that in­form its es­tab­lish­ment?

Sec­tion 2 of Le­gal No­tice 75 pro­vides that the Com­mis­sion shall make rec­om­menda-

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Jus­tice Mpa­phi Phumaphi.

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