The SADC commission and struggle against impunity
“….Right, as the world goes, is only in question between equals in power, while the strong do what they can and the weak suffer what they must.” Thucydides, The History of the Peloponnesian War 400 B.C.
LESOTHO has over the years been unstable and institutions which should, as per the constitution, defend and protect justice have always been either in the forefront of committing crimes or been complicit in the protection of high profile criminals. The established institutions have not been equal to the task leading to the never-ending SADC interventions in the country.
To illustrate the point, in the past 20 years or so, SADC has had to intervene in Lesotho in one way or another more than five times. Before the establishment of the present Commission investigating instability in general and the murder of Lt. General Maaparankoe Mahao in particular, SADC had just completed but not submitted a report about its mission which ended in March 2015.
The latest episode which forced SADC to establish a Commission of Inquiry under the leadership of Justice Mpaphi Phumaphi from Botswana is a clear example of persistent instability. The continuing crisis, it must be noted, is largely due to the unfinished business of all previous SADC interventions which failed to restructure the army that has been the main stumbling block in Lesotho’s progress over the past quarter century.
We have had problems of the army in 19941995; again in 1998-1999; again in 20072008; again 2014 to the present. What is clear is that unless SADC this time ensures that people who have committed crimes in the past two to three years and have been shielded by the army account for their crimes, there will be a follow up mission once again to put out the fires.
The Lesotho crisis is also to some extent a result of the actions of some Lesotho politicians who always resort to use of this unprofessional army to solve their political problems. We thus have army officers doubling in politics as was made clear by the evidence of the first army witness to the Phumaphi Commission (Sechele).
If what he said was not so tragic, it would have been hilarious to listen to an army officer arguing that there was no Prime Minister after the defection of two Members of Parlia- ment from the ruling party coalition to the opposition. An army officer had the temerity to declare in public that there was a vacuum in the office of Prime Minister. More importantly such a determination is made by the army officer! At the same time we have had some politicians hiding behind this unprofessional and politicised army.
It is in these circumstances that the SADC Commission has been established. The pivotal event which brought things to the fore was the murder of Lt. General Mahao and the subsequent dispatch of a fact-finding mission shortly after the murder.
A Fact Finding Mission led by South Africa’s Minister of Defence Nosiviwe MapisaNqakula decisively reported about the deteriorating security situation in Lesotho, contradicting the Lesotho government’s version that all is well in the country.
Amongst the critical issues raised by the Ministerial Fact Finding Mission Report (SADC/DTS/3/2O15/3) were the following observations:
i) the security situation in the country is tense as evidenced by the flight of the opposition leaders, the alleged ‘mutiny plot’ and subsequent investigations and the death of Brigadier Mahao;
ii) concern about the impending court martial and its consequences on the political and security situation in the country;
v) general concern about the role of the army;
ix) the King’s serious concern on the deteriorating security situation in the country, especially the role of the army.
At the centre of Mapisa-nqakula’s mission report were issues about the overall behaviour of the military and its reach into the po- litical process. The army, as can be observed, was seen as the cancer in the body politic of Lesotho.
What was clear from the beginning was that the establishment of the Phumaphi Commission was inevitable. The Lesotho government which had all along insisted that there was stability in Lesotho; and also, as per the statement of Defence and National Security Minister Tšeliso Mokhosi that Mahao was killed in a shoot-out resisting arrest, grudgingly requested the establishment of such a Commission. As a result of this grudging acceptance of the inevitable, it was also foreseen that roadblocks would be put in front of the investigation.
These have happened, and the contest between SADC’S attempts to find sources of instability and the murder of Mahao would be confronted by the Lesotho government’s obstructions. The government knew from the beginning that its actions had turned international public opinion against it.
The only way to mollify it was to request SADC to intervene through the Commission. But from the beginning, the Commission would be obstructed while at the same time
giving the impression that it was cooperating.
Manipulating the Terms of Reference Following the discussions of the report of the Fact Finding Mission by the Extraordinary Summit of the SADC Double Troika, a Communique was issued establishing the Commission of Inquiry. The main areas which the Commission of Inquiry was set up for were to investigate largely three things; the circumstances surrounding the death of Lt. General Mahao; the circumstances and legality of the removal and reinstatement of Lt. General Kamoli by the previous government and his reinstatement by the current government and the alleged mutiny within the LDF.
It was clear to everybody that the Commission was a means of gathering information on those security issues which had been identified by the Mapisa-nqakula Fact Finding Mission which preceded the Double Troika Summit. Surprisingly, the Lesotho government which had publicly stated that it welcomed the establishment of the Commission suddenly began to murmur that the recommendations of the Commission are not prosecutable. But more importantly gazetted terms of reference which were markedly different from those agreed to by the Summit.
In essence Legal Notice No 75 issued on 28/07/2015.establishing the Commission under the Public Inquiries Act 1994 attempted to turn the Commission into an instrument of investigating political decisions of the previous government rather than an investigation of the instability and murder of Mahao.
Elsewhere I have argued that it was also one of the most disingenuous attempts to suggest to the Commission its findings. For example TOR 3(e) (ii) which suggests that some sections of society viewed the 30th August 2014 action by LDF should not be regarded as an attempted coup but a “.. in truth a timely intervention by the army to forestall intended armed violence against, and massacre of innocent people by rogue elements of the Lesotho Mounted Police Service.
The intentions were clear. The government wanted to suggest that the Phumaphi Commission must absolve the army from the events of that fateful day and put the blame on the victims. Commissions, it must be stated, investigate and Tors must not in any way be suggestive of their findings.
It is not surprising that the SADC Summit of 16-17 August 2015 in Gaborone rejected outright this manoeuvre and insisted that the Tors must be as they were approved by the Double Troika in July 2015. “Summit reaffirmed the approved Terms of Reference of the Commission of Inquiry and strongly urged the Government of the Kingdom of Lesotho to gazette the Terms of Reference of the Commission as approved.” SADC’S firm stand avoided the attempt to turn the Commission into a farce.
The amendment of that gazette by Legal Notice No 88 was the clearest indication that the Gaborone Summit’s firm stand was understood by the Lesotho Government. But this was only the beginning of the attempts to block the Commission to find the perpetrators behind the murder of Lt. Gen. Mahao.
Lack of Cooperation with Commission The persistent attempts to emasculate the work of the Commission did not end with the attempt to change the key features of the Tors. Government began a concerted effort to refuse assisting the Commission with information privy to the government and its in- stitutions. Appearing before the Commission, Prime Minister Pakalitha Mosisili pretended not to know critical issues which any premier would know, preferring to say that perhaps the Minister of Defence and National Security would be better placed to know. On the other hand, Minister Mokhosi also claimed ignorance.
His standard response to questions by the Commission was that army operations and those in them were not his responsibility. He thus could not reveal the names of people who participated in the operation which led to the murder of Mahao. But worse, the Minister deliberately complicated the work of the Commission by convening the Court Martial, to run concurrently with the investigation by the Phumaphi Commission.
SADC has tasked the Commission to investigate the alleged “mutiny plot” while the Minister now pushes the Court Martial to go over the same issue. Critically the LDF has flatly refused to reveal the names of the perpetrators of Mahao’s murder and have also refused to let the police to have access to the vehicle(s) involved in the ambush and the weapons used on that day. The consequences of these actions, as I will argue below are serious and will lead to sterner response by SADC.
It is for this reason that in a meeting in Pretoria attended by the SADC Facilitator and the Executive Secretary of SADC recently where the Lesotho government was reminded of its responsibilities to cooperate with the Commission in line with the decisions of the Double Troika in July 2015 and the SADCA Summit in August 2015. The message was clear and unambiguous. However the situation does not seem to have improved matters.
As a direct result of the unavailability of peace and security, leaders of all major opposition political parties in Lesotho have fled to South Africa. In the same manner a big contingent of army officers have been in exile in South Africa as a result of incidents of 2014 and those of 2015. All above could therefore not be able to safely give evidence in Lesotho.
The SADC Commission accordingly sought their evidence in their place of refuge. It is here where the biggest rupture between the SADC Commission and the Lesotho government took place.
In an address to the Commission before it relocated to South Africa, Government legal representative King’s Counsel (KC) Motiea Teele indicated that moving to South Africa would be illegal because the oaths and immunities of such a Commission are not extraterritorial. They accordingly would not represent the Government in South Africa.
Later another lawyer for the Government, KC Salemane Phafane is quoted as saying that they would fight to have all evidence gathered in South Africa declared inadmissible and should not be part of the report of the Commission.
The Commission temporarily operated from South Africa until 7 October 2015 without any government representatives. The government’s arguments are facile because in the first place, this is a SADC Commission even though it was facilitated in Lesotho by the issue of the Government Gazette. The main reason for gazetting was in order to be able to subpoena witnesses in Lesotho who would not be free or willing to go on their own.
Elsewhere, I have argued that there was actually no legally binding reason to gazette the Tors since those were issued by an intergovernmental organisation. SADC allowed the gazetting only for the reasons stated above, and rebuked the government’s attempt to substitute its Tors. That is why Gazette No 88 came into being. It was in my view an unnecessary move.
Secondly, by their very nature, Commissions of Inquiry are not a court of law. They can gather evidence wherever it is and can use other measures where necessary. A clear example is provided by the investigations by the Human Rights Commission on the Gaza war where the Israeli government refused entry to the Commission, but it sat outside the Israeli controlled borders and has since issued a report. Where and how the Commission gathers evidence is irrelevant. When the matter reaches the court of law, evidence will be given de novo (anew).
Thirdly, issues like the present one are not going to be decided on strictly technical means. It is a broader issue of regional politics. Lesotho is a member of SADC and cannot attempt to block questions of peace and security on irrelevant issues meant to protect criminals. Southern Africa is intent on reining in the chaos in Lesotho lest it creates ripple effect in the whole region. Let’s also remember that it is not the first time that SADC has enforced its will on a sitting Lesotho government.
The letters which led to the reinstatement of the BCP Government in 1994 and later the reinstatement of King Moshoeshoe II are clear example where both President Nelson Mandela and President Robert Mugabe made it clear that the will of the region supersedes the technicist arguments which had been presented. Indeed, the Thucydides dictum 400 BC is applicable. The weak cannot impose their will on the powerful.
It is for the same reason that issues about cooperation and lack of have been the only agenda item in Maputo meeting on the 6 October 2015 held by the Chairperson of the Organ on politics, Defence and security cooperation. Though the participants were tight-lipped, the Mozambique Foreign Minister Oldemiro Baloi is quoted as saying at the end of the meeting, that President Nyusi “was briefed about the political situation in Lesotho”, and about the mechanisms to be adopted to end the crisis. “As you can imagine, this is a delicate process consisting of political, military and social components,” said Mr Baloi.
The delicacy of the situation meant he was not at liberty to divulge more details of the meeting. This can only be a prelude to a showdown as time goes on between the Troika and the Lesotho government. The clash of wills is inevitable and the outcome is clear. Some- body will get hurt.
The issue as we conclude is that there is now a clear understanding by all sides that the Lesotho crisis is at the stage when a final solution has to be found. The key to that is the Phumaphi Commission.
Way forward for Lesotho As I have argued above, the main issues that Lesotho faces are those of instability, promoted by the unreformed and politicised army; and the drift in recent times to impunity for all those who are allied to the army. SADC has now embarked on the direction of dealing with the issue. Evidence provided to the Commission so far indicates that it will not be possible to undo the damage unless drastic measures are taken.
The 1998 intervention left the reform process midway and that is why we are where we are. First, when the Commission completes its work SADC must deploy sufficient military and civilian oversight personnel to arrest and disarm those units which are responsible for the instability in general and the murder of both Sub-inspector Mokheseng Ramahloko, a police officer who was brutally killed on 30 August 2014, and Lt. General Mahao in June 2015. Unless the military rebellion which began in 2014 is quashed, there will be a recurrence of these events. It will provide a fertile environment to other militarists in the region to refuse civilian control of the military.
Secondly, SADC must ensure that Parliament undertakes the reforms informed by the visit to New Zealand by senior government and parliamentary delegation in the previous government and the SADC Mission Report recommendation presented to the Double Troika in July 2015. It is clear that these must be overseen by SADC. Without SADC supervision the necessary reforms will not take place.
Finally, SADC must either oversee the prosecution of all the perpetrators of the crimes committed or ensure that a Special Tribunal is set up which will try all those cases. Without impugning the integrity of the courts, it is clear that the justice system taken as a whole is broken and criminals would be able to escape justice if the above stated measures are not done. SADC should take a cue from the recent AU decision establishing the Tribunal to try major human rights violations in Africa.
It is clear that even if the Phumaphi Commission were to identify suspects and make recommendations, the government on its own would not be in a position to implement those. Even if Government were to try to implement recommendations without SADC supervision, the current institutional weaknesses would lead to the collapse of the criminal cases. Some institutions are weak, while others are so totally compromised that the future of Lesotho on matters like these cannot be entrusted to them.