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 Times - - Opinion & Analysis - Prof Mafa M Se­jana­mane

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.

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