Haae Phoofolo a thief?

The ram­i­fi­ca­tions of theft of pub­lic opin­ion

Lesotho Times - - Opinion - Haae Phoofolo Ad­vo­cate Haae Phoofolo (KC) is a former Min­is­ter of Hu­man Rights, Law and Con­sti­tu­tional Af­fairs.

in var­i­ous plat­forms, there have been many brazen at­tempts to steal the pub­lic opin­ion about both my pro­fes­sional and per­sonal dig­nity and in­tegrity.

How­ever, to my dis­may, there has never been an open and frank con­fronta­tion about two of my al­leged car­di­nal sins — theft of Cen­tral Bank of le­sotho money in the late eight­ies when i was its deputy gover­nor lead­ing to my con­vic­tion and in­car­cer­a­tion.

Se­condly, my 21-day reign as the head of the in­terim gov­ern­ment which sprang from my al­leged theft of the late former prime min­is­ter Ntsu Mokhehle’s demo­crat­i­cal­ly­elected gov­ern­ment.

there has al­ways been an un­for­tu­nate trend in le­sotho’s po­lit­i­cal ter­rain by those in power to gain po­lit­i­cal mileage by way of char­ac­ter as­sas­si­na­tions. Be­fore nar­rat­ing my tale, it is per­haps wor­thy of me to re­peat what my late fa­ther once told me.

the man was an angli­can pri­est, and he ad­vised me one day af­ter my ad­mis­sion into the le­gal pro­fes­sion: “buella batho lefatšeng ‘na ke tla buella batho leholimong”.

When loosely trans­lated it means speak on be­half of peo­ple on earth while i speak on be­half of those in heaven.

the late Rev­erend Phoofolo may have in­ad­ver­tently omit­ted to ad­vise me on how to de­fend my­self when ill-in­formed at­tacks and venge­ful venom is spat upon me.

When ap­proach­ing 70, it is clearly no longer a healthy ex­er­cise for a man of my age to be con­sis­tently on the de­fen­sive try­ing to pro­tect and per­haps re­coup the bits and pieces flow­ing from the de­struc­tion of my name and per­sonal dig­nity.

i am sup­posed to be mak­ing mean­ing­ful con­tri­bu­tions in the de­vel­op­ment of this tiny coun­try based on my am­ple ex­pe­ri­ence as a gov­ern­ment bu­reau­crat, le­gal prac­ti­tioner and later on politi­cian.

i may have run out of ir­ish luck in my ex­ploits as a politi­cian as has of­ten been said in some quar­ters, but i want to place it on record that i am nei­ther seek­ing to evoke the sym­pa­thy of the pub­lic nor to gloat.

How­ever, I find it im­per­a­tive to clar­ify my po­si­tion and par­tic­i­pa­tion in the al­leged sor­did ac­cu­sa­tions my cri­tiques have staged against me.

i am not ready to apol­o­gise for be­ing hu­man but will be quick to rec­tify dis­tor­tions of fact over my al­leged car­di­nal sins.

am i a thief as sug­gested by Bri­gadier Mokaloba or his co­horts? the first page of Adv. Kele­bone Maope K.C’S Law Re­port of 1990-1995 le­sotho ap­peal Cases (a se­quel to Chief Jus­tice Cul­li­nan’s elab­o­rate and com­pre­hen­sive judge­ment) ar­tic­u­lates the na­ture and scope of what ne­ces­si­tated my in­car­cer­a­tion in the early 1990’s and none of the 18 counts of which i was charged were in­clu­sive of “theft” as al­leged by my per­sonal ag­i­ta­tors and ill-in­formed pun­dits.

the great­est short­com­ing of the law re­port is that it does not ar­tic­u­late the un­der­ly­ing fac­tors lead­ing to my charge and the ill-driven po­lit­i­cal con­sid­er­a­tions which played a part. le­gal in­tel­lec­tu­als will clearly agree with me that the mod­ern ju­rispru­dence clearly leans in favour of an ob­jec­tive, trans­par­ent, in­de­pen­dent and pro­fes­sional pros­e­cu­tion agents within the gov­ern­ment bu­reau­cracy and ef­fec­tively yields a trend of con­sti­tu­tional safe­guards which mil­i­tate against any abuse of power by either the ex­ec­u­tive or the prose­cut­ing author­ity for that mat­ter.

the net ef­fect of which is the in­su­la­tion from ad hominem and or se­lec­tive pros­e­cu­tion of or­di­nary cit­i­zens driven by ill-will and im­proper mo­tives of those in power over and above prin­ci­ple.

Per­haps, in hind­sight, one may say that the pros­e­cu­tion of the Pres­i­dent of the Court of ap­peal seeks to in­no­va­tively as­sess the con­sti­tu­tional pro­pri­ety of se­lec­tive and dis­crim­i­na­tory pros­e­cu­tion of an in­di­vid­ual cit­i­zen and i shall wait with bated breath for the out­come of the said case which the en­tire coun­try and the le­gal pro­fes­sion awaits with en­thu­si­asm.

The 19th charge which was never re­flected in my in­dict­ment is that of “po­lit­i­cal in­cor­rect­ness” and a per­sonal fall-out with an in­flu­en­tial min­is­ter and politi­cian lead­ing to trumped up charges and my even­tual in­car­cer­a­tion.

this has been the con­sis­tent trend pre­vail­ing in the King­dom of le­sotho from as far back as the early days of in­de­pen­dence when i was a scholar at the UBLS and in 1970 when I was one of the first in­hab­i­tants of the now in­fa­mous Max­i­mum Se­cu­rity fa­cil­ity.

Well over 25 years af­ter my pros­e­cu­tion, the same trend of my char­ac­ter as­sas­si­na­tion is still rife within the King­dom. Do we ever learn?

ten years ago, there was a co­or­di­nated state sanc­tioned per­se­cu­tion and or pros­e­cu­tion by Prime Min­is­ter Mo­sisili’s gov­ern­ment of Ad­vo­cate Zwe­lakhe Mda (King’s Coun­sel) un­der the pre­text that he had en­gaged in the ob­struc­tion of jus­tice and barely two and a half years ago the same in­sti­tu­tions of gov­ern­ment re­nounced his cit­i­zen­ship with­out suc­cess af­ter the in­ter­ven­tion of courts of law.

the same in­sti­tu­tions of gov­ern­ment are uti­lized by those in power to pro­tect their af­fil­i­ates and sym­pa­this­ers whose po­lit­i­cal cor­rect­ness is with­out doubt and also to con­versely per­se­cute those guilty of po­lit­i­cal in­cor­rect­ness.

the in­her­ent dan­gers of ma­nip­u­la­tion of in­sti­tu­tions which serve the ob­jec­tive of ad­min­is­tra­tion of jus­tice is that it re­sults in the fur­ther de­clin­ing of or­di­nary Ba­sotho’s con­fi­dence in the wheels of jus­tice.

Even worse, the en­tire na­tion has been paci­fied and the cur­rent Min­is­ter of Po­lice’s crim­i­nal trial has been sub­jected to a nat­u­ral death mainly — and this can safely be as­sumed — be­cause he is the head of the very in­sti­tu­tion that should fa­cil­i­tate his con­vic­tion in courts of law.

there is yet an­other crit­i­cal di­men­sion which my ag­i­ta­tors may have over­looked and it has to do with the fact that i was still able to prac­tice law post my con­vic­tion and in­car­cer­a­tion — How and why did this come about notwith­stand­ing a ro­bust and prin­ci­pled law So­ci­ety that was led by the charis­matic ju­rist Jus­tice Churchill Maqutu?

How ex­actly can a fraud­ster and thief be al­lowed to prac­tice law in the courts of law? there was an elab­o­rate and com­pre­hen­sive de­lib­er­a­tion over the is­sue and records will clearly bear that i was ul­ti­mately ex­on­er­ated by coun­cil’s res­o­lu­tion on the grounds that the crime of which i was con­victed did not at­tach any “moral blame­wor­thi­ness” ren­der­ing me un­fit to prac­tice the pro­fes­sion within the con­text of the le­gal Prac­ti­tion­ers act.

i was con­victed on the ba­sis of non-con­form­ity with the dy­nam­ics of the rel­e­vant fis­cus laws reg­u­lat­ing the Cen­tral Bank.

i com­menced prac­tice in the early nineties af­ter this ex­on­er­a­tion by the reg­u­la­tory body which was never even pur­sued but to my dis­may, this is­sue ma­te­ri­alised yet again post my ap­point­ment as head of the in­terim gov­ern­ment in 1994 in cir­cum­stances which i shall tackle when deal­ing with the al­le­ga­tion of my theft in Dr Mokhehle’s gov­ern­ment.

But be­fore i put my pen to rest on this is­sue, i must has­ten to in­di­cate that my in­car­cer­a­tion was never an illustration of my per­sonal short­com­ings but those of the in­sti­tu­tion of gov­ern­ment which is in­fested with abused and ma­nip­u­lated pub­lic in­sti­tu­tions at the be­hest of the treach­er­ous politi­cians.

The 1994 “Royal Coup D’etat” as termed by Pro­fes­sor Nqosa Ma­hao (the el­dest brother of the as­sas­si­nated former Le­sotho Defence Force com­man­der Maa­parankoe Ma­hao whose as­sailants are still at large) in his bril­liantly ar­tic­u­lated ar­ti­cle ti­tled: “the Con­sti­tu­tion, the Elite and the Monar­chy’s Cri­sis in le­sotho” is the only schol­arly ar­ti­cle which came close to prop­erly con­tex­tu­al­iz­ing the sce­nario that pre­vailed and which ob­jec­tively analy­ses the sit­u­a­tion as it un­rav­elled when i (in the com­pany of some other five per­sons — some of whom are iron­i­cally vo­cal mem­bers of the rul­ing regime at present) was ap­pointed as in­terim head of gov­ern­ment for three weeks.

Pro­fes­sor Ma­hao elo­quently an­a­lysed the sit­u­a­tion as thus: “… the con­sti­tu­tional ar­range­ment of a royal monarch pro­vides am­ple proof that nei­ther the King nor the po­lit­i­cal elite fully ac­cepted the sacro­sanc­tity of this ar­range­ment.

“this has cre­ated a par­tic­u­lar dilemma for the monar­chy. For, al­though the monar­chy is pro­claimed as a sym­bol of Ba­sotho’s na­tional unity, it has been at the cen­tre of con­tro­ver­sies.

“like lead­ers of po­lit­i­cal par­ties, it tends to be seen as just an­other con­tes­tant for po­lit­i­cal power. For its part, this arises out of the need to re-claim the author­ity it lost when it was made con­sti­tu­tional.

“Be­cause of this pro­cliv­ity and the per­cep­tion that it is just one of the many forces vy­ing for power, it has of­ten not only suf­fered in es­teem but has also had its fair share in the tribu­la­tions which char­ac­terise post-colo­nial le­sotho pol­i­tics.”

the es­tab­lish­ment of the in­terim gov­ern­ment was sparked not by my theft of power and the demo­crat­i­cally-elected gov­ern­ment, but by the po­lit­i­cal elite’s at­tempt to rape the in­sti­tu­tion of the Monar­chy to the ad­verse prej­u­dice of the tra­di­tion­ally ac­cepted in­sti­tu­tions of piv­otal im­por­tance in this tiny King­dom.

Prof Ma­hao’s anal­y­sis was clearly spot-on but sub­se­quent to the re­in­stal­la­tion of Dr Mokhehle’s regime, the late Tha­bang Khauoe — a lawyer based in the cap­i­tal city, launched a land­mark case in which he sought to chal­lenge the re-in­stal­la­tion of His Majesty King Moshoeshoe ii.

the out­come was with­out suc­cess to him but the case re­mains as one of the glar­ing re­al­i­ties of le­sotho’s peren­nial chal­lenges which stem from the del­i­cate re­la­tion­ship of the politi­cians and the head of state.

Mr Khauoe was the leader of the le­gal pro­fes­sion and he, to­gether with some po­lit­i­cally-mo­ti­vated pro­fes­sion­als, lob­bied yet again for my re­moval from the roll of at­tor­neys both in my home coun­try and in the Re­pub­lic of South africa and their premise was that per­haps yet again — i was a thief and fraud­ster and hence dis­qual­i­fied from prac­tis­ing law and gen­er­at­ing a liv­ing for both my­self and my then very young chil­dren.

Mr Khauoe was suc­ceeded by tankiso Hlaoli as leader of the pro­fes­sion and both men were then staunch mem­bers of the Ba­sotho Congress Party regime who were clearly dis­en­chanted with my ap­point­ment as head of in­terim gov­ern­ment.

Within the same pe­riod, there was an ini­tia­tive by the le­gal pro­fes­sion to have me re­moved from the roll both in Sa and in my home coun­try and i im­me­di­ately re­sorted to courts of law and suc­cess­fully won my bid with costs but did not pur­sue them. this vendetta had been staged by my col­leagues in the le­gal pro­fes­sion who were po­lit­i­cally aligned.

the cur­rent state of the di­vided pro­fes­sion stems from the politi­ciza­tion of the pro­fes­sion and the fail­ures of le­gal pro­fes­sion­als to draw a line in the sand be­tween pro­fes­sional and po­lit­i­cal val­ues.

the mix­ture of the two can be­come a de­struc­tive force in a tiny coun­try like le­sotho and how i wish the young lawyers would avoid this by all means.

as if that was not enough, some­time in 1997, there was yet again an at­tempt to have me si­lenced when i was ar­rested and im­pris­oned on charges of trea­son for my rep­re­sen­ta­tion of cer­tain po­lice of­fi­cers who had fallen out with the then rul­ing regime.

the trea­son charge was later with­drawn and was never pur­sued. Sev­en­teen years later, yet an­other lawyer and prin­ci­pal le­gal ad­vi­sor of the gov­ern­ment in­sti­tuted a lit­i­ga­tion in which he sought to chal­lenge the ap­point­ment of the Pres­i­dent of the Court of ap­peal and cited the Head of State as a party in the very same lit­i­ga­tion.

the out­come was equally with­out suc­cess to the at­tor­ney-gen­eral but what is sig­nif­i­cant for pur­poses of my illustration is that the en­demic po­lit­i­cal ten­sions in this coun­try stem from the theft of pub­lic opin­ion and the no­tion of dem­a­gogue po­lit­i­cal pro­pa­ganda which is be­ing spread by ill-in­formed ag­i­ta­tors and pun­dits.

there has al­ways been a sub­tle in­tim­i­da­tion and the un­der­min­ing of the role of Head of State by the pre­vi­ous heads of gov­ern­ment since in­de­pen­dence and even post the 1993 demo­cratic phase and there has been some ev­i­dent signs of at­tempts of the said par­tic­i­pants to emas­cu­late the royal aris­toc­racy from the tra­di­tional pow­ers which it en­joyed to the ad­verse prej­u­dice of the sym­bolic role which His Majesty is sup­posed to play.

a prac­ti­cal ex­am­ple is the pro­mul­ga­tion of the lo­cal Gov­ern­ment Act of 1997 which was pro­mul­gated hardly two years af­ter the na­tional cri­sis.

the act in, some ma­te­rial re­spects, sought to un­der­mine the prin­ci­pal as­pects of the 30-year-old Chief­tain­ship Act of 1967 and to also de­mote the role of a chief into a level of sub­ju­ga­tion to the demo­crat­i­cally-elected coun­cil­lors.

the net ef­fect of which is to so­lid­ify and con­cretize the role of the po­lit­i­cal elites’ powerbase to the ad­verse prej­u­dice of the tra­di­tional in­sti­tu­tion of chiefs as a com­po­nent of the royal aris­toc­racy.

in the ul­ti­mate anal­y­sis, one can­not help but frankly state that the pol­i­tics of gos­sip and pro­pa­ganda are un­for­tu­nate be­cause they fail to as­sess and eval­u­ate the core na­tional is­sues that re­quire at­ten­tion and nei­ther can a gov­er­nance agenda be cul­ti­vated there­from.

i have been un­for­tu­nate to have been both a par­tic­i­pant and vic­tim of this ill-fated sys­tem which has since been deeply rooted in the po­lit­i­cal cli­mate and can com­fort­ably steal this mo­ment and ac­cept the brand of a thief not of cen­tral bank’s money (as sug­gested by Bri­gadier Mokaloba) but of ideas that we can in­ter­ro­gate in the as­sess­ment of le­sotho’s po­lit­i­cal cli­mate be­yond petty per­sonal af­fronts.

I can con­fi­dently say that I am a jail­bird in­deed un­like many politi­cians in this coun­try whose fear of jail prompts them to abuse pub­lic in­sti­tu­tions to avoid fac­ing the wrath of the law.

Such politi­cians may run but at some point the arms of the law will catch up with them and the same ap­plies with mem­bers of the mil­i­tary who are evad­ing the long arm of the law.

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