How was SADC Com­mis­sion man­date al­tered?

Lesotho Times - - Leader - So­fonea Shale

SUN­DAY is In­de­pen­dence Day, which un­doubt­edly is an im­por­tant mile­stone in the coun­try’s history.

Le­sotho has been able to chart her own des­tiny since 1966 de­spite be­ing amongst the small­est states in the world, and be­ing wholly sub­sumed by south Africa. The Moun­tain King­dom stands as a sov­er­eign na­tion against the odds, which is tes­ta­ment to the re­silience and tenac­ity of her peo­ple.

There are a lot of pos­i­tives to take as we reach 49 years. Con­sid­er­ing the re­pres­sion that char­ac­terised the early years of our in­de­pen­dence, we have in­deed come a long way. Un­der found­ing premier, Le­abua Jonathan, the prom­ise of democ­racy turned into a night­mare as he ruled by de­cree and with­out a pop­u­lar man­date for 16 years.

Army rule was no bet­ter, as free­dom of speech and as­so­ci­a­tion were curbed to en­sure the sta­tus quo re­mained. How­ever, de­spite our myr­iad of prob­lems, it can be safely stated that Le­sotho is fi­nally on an ir­re­versible path to democrati­sa­tion.

This was ev­i­denced by the 28 Fe­bru­ary 2015 gen­eral elec­tions which were cred­i­ble and cul­mi­nated in a peace­ful trans­fer of power. That achieve­ment is wor­thy of com­men­da­tion in a con­ti­nent lit­tered with sto­ries of vote rig­ging and po­lit­i­cally-mo­ti­vated vi­o­lence. In such coun­tries as Mozam­bique, Zim­babwe and Mada­gas­car in the SADC re­gion, peace­ful elec­tions re­main as elu­sive as ever. It is, thus, heart­en­ing that Ba­sotho can teach other na­tions a thing or two about hold­ing cred­i­ble elec­tions.

How­ever, be­fore we pop the cham­pagne, it should be borne in mind that our 49th in­de­pen­dence an­niver­sary cel­e­bra­tions are be­ing held un­der the shadow of po­lit­i­cal in­sta­bil­ity which prompted the un­prece­dented in­ter­ven­tion of south­ern African De­vel­op­ment Com­mu­nity (SADC).

At 49, Le­sotho would be well into mid­dle age if she was a hu­man be­ing. Com­pared to the other coun­tries in the SADC re­gion, Le­sotho would be re­garded as an el­der since the other na­tions at­tained in­de­pen­dence way af­ter the Moun­tain King­dom.

It is, thus, sad to see that Le­sotho is re­garded as a prob­lem child in the SADC re­gion, de­spite hav­ing at­tained in­de­pen­dence ear­lier than most. If a per­son or coun­try fails to grow and evolve, it borders on delin­quency. In short, 49 years af­ter ma­jor­ity rule, Le­sotho is a very poor coun­try, both eco­nom­i­cally and in­tel­lec­tu­ally, and badly in need of a new mind­set.

While we dither, the ma­jor­ity in this na­tion con­tinue to drown in a sea of poverty re­flected in low scores in all so­cial and de­vel­op­ment in­di­ca­tors. The promis­ing road that we em­barked on 1966 has led to a dead-end of cor­rup­tion and de­cay, spawned by mis­placed pri­or­i­ties. As a re­sult of our lethargy, Le­sotho leapfrogged Botswana into sec­ond place among the coun­tries with the high­est HIV/AIDS preva­lence in the world with 23 per­cent. swaziland still leads the pack at 26 per­cent, but if we don’t get our act to­gether, we might also soon over­take our fel­low monar­chy.

Be­ing la­belled as a least de­vel­oped na­tion is not a badge of hon­our. Many other small na­tions like sin­ga­pore, Tai­wan or Rwanda closer to home have emerged from ob­scu­rity to punch above their weight on the global mar­ket­place. Why not Le­sotho?

Con­tin­u­ally mak­ing news for the wrong rea­sons is some­thing we must un­equiv­o­cally re­ject as a na­tion. With the right re­solve and cre­ativ­ity, Ba­sotho should en­gage in a re­demp­tion strug­gle to pri­ori­tise the elim­i­na­tion of poverty and dis­ease for this coun­try to re­gain hu­man dig­nity.

The words of coun­sel from Chi­nese Am­bas­sador, HU Dingx­ian, else­where in this edi­tion aptly elu­ci­date on what Le­sotho needs to do go­ing for­ward.

He said: “At present, though, Le­sotho is again fac­ing a lot of dif­fi­cul­ties and chal­lenges, I sin­cerely hope all Ba­sotho peo­ple will unite as one, put the over­all na­tional in­ter­ests in the first place, and over­come the dif­fi­cul­ties and chal­lenges as early as pos­si­ble so that they can put more time, energy and re­sources on so­cial and eco­nomic de­vel­op­ment that are badly needy by the Ba­sotho na­tion.”

We couldn’t agree more. As the Phumaphi Com­mis­sion lis­tens to ev­i­dence from var­i­ous peo­ple ap­pear­ing be­fore it, the gen­eral public easily ap­por­tions as right or wrong, ac­cept­able or un­ac­cept­able, help­ful or un­help­ful but all mainly within the po­lit­i­cal di­vide.

Though peo­ple have known that there have been some al­ter­ations to the work of the com­mis­sion, it is not clear, in fact it is very con­fus­ing as to how ex­actly was Phumaphi com­mis­sion man­date al­tered?

The gen­eral mood cre­ated and which seems to have also af­fected the ap­pre­ci­a­tion of the com­mis­sion of its man­date is that its terms of ref­er­ence are ex­clu­sively con­tained in the sec­tion 3 (1) a) to o) as con­tained in the Le­gal No­tice Num­ber 88 which is in ef­fect an amend­ment to the sec­tion 3(1) a) to s) in the Le­gal No­tice Num­ber 75 of 2015.

The amend­ment sought to re­move in the list of Terms of Ref­er­ence of the Com­mis­sion of In­quiry into Dis­tur­bances to na­tional Peace and sta­bil­ity all other is­sues which have been in­serted by the gov­ern­ment and re­tain­ing the Tors orig­i­nally agreed by the SADC Dou­ble Troika meet­ing in Tšoane south Africa on the 3rd of July 2015.

The ex­pla­na­tion of this has rightly been that the al­ter­ation con­cen­trated all the work of the Com­mis­sion on the is­sues re­lated to the killing of for­mer com­man­der of Le­sotho De­fence Force.

While this is true it would be very dan­ger­ous for peo­ple to think that any­thing which does not say how Ma­hao was killed is un­help­ful to the Com­mis­sion. In terms of sec­tion 3(1) a) to o) Com­mis­sion is ex­pected by way of sum­maris­ing to es­tab­lish cir­cum­stances un­der which the for­mer com­man­der was killed and in­ves­ti­gate whether it is true or false that he re­sisted ar­rest and if Le­sotho De­fence Force ap­plied ex­ces­sive force in seek­ing to ar­rest him.

The Com­mis­sion also seeks to find who is re­spon­si­ble for killing with a pur­pose of mak­ing them to ac­count. It is also to look at some re­lated mat­ters like le­gal­ity or oth­er­wise of re­moval and reap­point­ment of Tlali Kamoli as com­man­der of the LDF and how the lat­ter move­ment in­formed the al­leged di­vi­sion within the mil­i­tary.

The ap­proved and le­gal ver­sion of the man­date also seeks to in­ves­ti­gate al­le­ga­tions that there was a mutiny and find out whether op­po­si­tion mem­bers are be­ing killed.

This is ex­tremely im­por­tant be­cause the Com­mis­sion was es­tab­lished when the na­tion was an­gry not only at the per­pe­tra- tors but also that willy-nilly kind of ap­proach of the gov­ern­ment to the mat­ter. so it is ex­tremely im­por­tant for Ba­sotho to know the truth about the death of this hero.

How­ever it would be a griev­ous mis­take for any­one in­clud­ing the Com­mis­sion to be­lieve that any­thing that is not con­tained in the sec­tion 3 (1) a) to o) of Le­gal No­tice Num­ber 88 is not help­ful to its Tors.

The par­ent le­gal No­tice Num­ber 75 has two sub­sec­tions in sec­tion 3 and these are 1 and 2. When the Le­gal No­tice Num­ber 88 amended sec­tion 3(1) a) to s) of the par­ent le­gal no­tice, it left 3(2) of the same in­tact.

It should there­fore be ap­pre­ci­ated that sec­tion 3(2) which reads “Con­sis­tent with the Com­mis­sions of this na­ture, the Com­mis­sion of In­quiry shall make such rec­om­men­da­tions as may bring ev­er­last­ing rec­on­cil­i­a­tion, peace and sta­bil­ity to the King­dom, for pos­ter­ity” forms part of the Terms of Ref­er­ence of the Com­mis­sion.

The last word might be typo er­ror and leg­is­la­tor might have in­tended to say “pros­per­ity”.

In fact it would be un­fair to this na­tion if the Com­mis­sion can fail to come up with re­comem­n­da­tios on this crit­i­cal com­po­nent of its man­date sim­ply be­cause it may feel as some peo­ple do that its man­date is lim­ited to sec­tion 3 (1) a) to o).

Be­cause Phumaphi Com­mis­sion has to rec­om­mend on ways of ev­er­last­ing rec­on­cil­i­a­tion, peace and sta­bil­ity in a man­ner that SADC may not re­side in this king­dom, it has to only as a mat­ter of its found­ing law but also as a mat­ter of prin­ci­ple give at­ten­tion to the pol­i­tics and gov­er­nance.

In the best case sce­nario that the Com­mis­sion es­tab­lishes whether or not there was a con­spir­acy over death of the for­mer com­man­der and per­pe­tra­tors are iden­ti­fied and it is rec­om­mended that they be held ac­count­able, what will hap­pen?

Is it not true that the sim­i­lar ques­tions that gov­ern­ment asked it­self be­fore it ran to Gaborone for sal­va­tion would still be asked?

In the po­ten­tial af­fir­ma­tive re­sponse to this ques­tion one has to deeply re­flect whether it is not true that Ba­sotho do need bet­ter than this raw deal from their lead­ers and the Com­mis­sion should be rel­e­vant in that re­gard.

If this makes sense, would it be cor­rect for Phumaphi Com­mis­sion to em­pha­sise sec­tion 3(1) to the de­ter­mine of sec­tion 3(2)? surely no!

Just like the Com­mis­sion has to con­cen­trate and on sec­tion 3(1) and un­der­stand­ably even get bit emo­tional at times, it has to make a de­lib­er­ate ef­fort to un­der­stand the par­tic­u­lar po­lit­i­cal con­text within which Ma­hao was killed by the in­sti­tu­tion which ought to have pro­tected him and gov­ern­ment re­acted the way it did.

These are big­ger ques­tions that will not only point to symp­toms but to the core of the prob­lem. The Com­mis­sion should ap­pre­ci­ate that for it to be in a po­si­tion to pro­pose ev­er­last­ing rec­on­cil­i­a­tion and peace, it has to un­der­stand in the first place why and how are Ba­sotho so di­vided po­lit­i­cally, how the SADC can be of help with­out parad­ing it­self as fa­ther Christ­mas for ar­ti­fi­cial so­lu­tions that never go to the roots of chal­lenges of this King­dom.

The only way to meet the essence of the sec­tion 3(2) is to lis­ten to the story of how dis­junc­ture be­tween the lo­cals in their track II diplo­matic means and the main­stream in the form of SADC and the gov­ern­ment of Le­sotho al­lowed the sit­u­a­tion to de­gen­er­ate into in­cor­rectible dam­age in the in­sti­tu­tions of gov­ern­ment and cor­rupted those who lead them.

Un­less sec­tion 3(2) is given nec­es­sary at­ten­tion, what is likely to come out of sec­tion 3(1) may be hard to re­alise.

As peo­ple con­tinue to en­gage on what they want and per­haps what they do not con­sider as help­ful to the Com­mis­sion and as strain catches up with the SADC team, and the ques­tion is asked on how Phumaphi com­mis­sion man­date was al­tered re­mem­ber sec­tion 3(2).

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