Le­sotho slowly slid­ing into an­ar­chy

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Is a hor­ror story about to un­fold be­fore our very own eyes? Is Le­sotho wait­ing per­ilously on the precipice of law­less­ness and the law of the jun­gle? Is Le­sotho on the brink of de­gen­er­at­ing into a so­ci­ety where only the strong and pow­er­ful will sur­vive? Has Le­sotho de­gen­er­ated into a so­ci­ety where the marginal­ized and vul­ner­a­ble have their rights and se­cu­rity are be­ing run roughshod by the pow­er­ful? Is the dreaded day of reck­on­ing set to dawn on this na­tion?

sadly, the an­swer to all th­ese sem­i­nal ques­tions are in the af­fir­ma­tive un­less some­thing is done to ar­rest the rot in the bud. Omi­nously, the gov­ern­ment seems un­will­ing, dis­in­ter­ested, un­able or ac­qui­esc­ing to this se­ri­ous de­cay in our col­lec­tive moral fi­bre as a na­tion.

A few months ago on the eve of the Fe­bru­ary 2014 snap gen­eral elec­tions I wrote un­der the same head­line (“Le­sotho is slowly slid­ing to an­ar­chy”) that the sacro­sanct prin­ci­ples of the rule of law and ju­di­cial in­de­pen­dence as a sine qua non (an es­sen­tial con­di­tion) for a sta­ble, pros­per­ous, law-abid­ing na­tion at peace with it­self are slowly be­ing eroded in Le­sotho.

The Le­sotho Times of Oc­to­ber 29 — Novem­ber, 2015 aptly en­cap­su­lates the wor­ry­ing sce­nario in its well-thought ed­i­to­rial com­ment un­der the head­ing “Courts of law are the peo­ple’s last defence”. I quote: “They may try to couch their in­so­lence in tech­ni­cal­i­ties, but it is a clear as day that the army is de­lib­er­ately de­fy­ing the courts, which are the last bas­tion of defence in a demo­cratic coun­try. If the courts of law lose their rel­e­vance, then it opens the door for an­ar­chy and may­hem to en­sue”.

“Ul­ti­mately, the rul­ings of the courts of law should re­main sacro­sanct and there is no in­di­vid­ual or agency with the right to say oth­er­wise”.

This telling ed­i­to­rial com­ment was penned as the Le­sotho Defence Force (LDF) un­der Lieu­tenant-gen­eral Tlali Kamoli, de­fied sev­eral court or­ders or­der­ing the re­lease of 22 army of­fi­cers whose con­tin­ued fur­ther de­ten­tion was de­clared un­law­ful by the High Court. Ed­mund Burke once said; “The only thing nec­es­sary for the tri­umph of evil is for good men to do noth­ing,”, and th­ese words run true to­day par­tic­u­larly in re­gard to our beloved coun­try Le­sotho.

The Con­cise Ox­ford English Dic­tionary de­fines “an­ar­chy” as “a state of dis­or­der due to ab­sence or non-recog­ni­tion of gov­ern­ment or other con­trol­ling sys­tems”. Now clearly, the courts are one of the three arms of gov­ern­ment and are in­deed a con­trol­ling sys­tem of gov­ern­ment mean­ing dis­re­gard of le­git­i­mate court or­ders is an­ar­chy.

The Con­sti­tu­tion of Le­sotho, the supreme Law, 1993, un­der sec­tions 146(1) and 147(1) re­spec­tively, pro­vides: “There shall be a Defence Force for the main­te­nance of in­ter­nal se­cu­rity and the defence of Le­sotho, “and” The shall be a Po­lice Force for Le­sotho that shall be re­spon­si­ble for the main­te­nance of law and or­der in Le­sotho and shall have such other func­tions as may be pre­scribed by an Act of Par­lia­ment”.

The Le­sotho Pe­nal Code Act, 2010, un­der sec­tion twelve (12) (1) pro­vides un­der “Ig­no­rance of the Law”, as a com­ple­men­tary pro­vi­sion to the maxim that “ig­no­rance ju­ris non ex­cusat” (sim­ply put, “ig­no­rance of the law is no ex­cuse”), “it shall be a defence for any per­son charged with an of­fence if he or she proves that at the time of the act or omis­sion form­ing the ba­sis of a crim­i­nal charge he or she could not rea­son­ably have been ex­pected to be aware of the fact that the con­duct con­tra­vened the law” and (2) pro­vides:

“The defence of ig­no­rance of the law shall be proved by such per­son on the bal­ance of prob­a­bil­i­ties”.

How­ever, this defence is not avail­able I sub­mit, in re­gard to the Com­man­der-ldf.

Fur­ther, sec­tions 87 (1) and (3) of the same leg­is­la­tion pro­vide re­spec­tively:

(1) A per­son who will­fully fails to obey a court or­der or bring the ad­min­is­tra­tion of jus­tice into dis­re­pute, com­mits an of­fence.

(2) A per­son who in the course of ju­di­cial pro­ceed­ings fails, with­out law­ful ex­cuse, to com­ply with the re­quire­ments of those ju­di­cial pro­ceed­ings com­mits an of­fence.

sec­tion 88 pro­vides: a per­son who, within the premises in which ju­di­cial pro­ceed­ings or an of­fi­cially con­sti­tuted pub­lic en­quiry is be­ing con­ducted within the precincts of the same, shows dis­re­spect in speech or con­duct to or with ref­er­ence to such pro­ceed­ings or any per­son be­fore whom such pro­ceed­ings are be­ing con­ducted com­mits an of­fence.

In­ter­est­ingly, sec­tion 118 (3) of the Con­sti­tu­tion pro­vides: “The gov­ern­ment shall ac­cord such as­sis­tance as the courts may re­quire to en­able them to pro­tect their in­de­pen­dence, dig­nity and ef­fec­tive­ness, sub­ject to this Con­sti­tu­tion and any other law”.

From the fore­go­ing pro­vi­sions, it fol­lows that the ex­ec­u­tive arm of gov­ern­ment is en­joined by law to as­sist the courts in up­hold­ing the law and rule of law as well as ju­di­cial in­de­pen­dence.

The Ex­ec­u­tive should lead by ex­am­ple by be­ing the van­guard of up­hold­ing the rule of law. Any­thing short of that is dis­as­trous. That is why the Ex­ec­u­tive has at its dis­posal the might of both the po­lice ser­vice and the army to en­sure the rule of law and pre­vent an­ar­chy at all cost.

How­ever, the Le­sotho gov­ern­ment is either ac­qui­esc­ing, un­will­ing, un­able or at worst in­cit­ing th­ese two crit­i­cal se­cu­rity in­sti­tu­tions to un­der­mine the rule of law as clearly shown by their con­sti­tu­tional im­per­a­tives.

In short, th­ese are the in­sti­tu­tions that are crit­i­cal, and are by law and con­ven­tion at en­sur­ing and up­hold­ing the rule of law and in­deed our nascent democ­racy.

Dur­ing the about-to-be con­cluded sadc-com­mis­sion of In­quiry into the cir­cum­stances sur­round­ing the killing of former LDF com­man­der Lt Gen Maa­parankoe Ma­hao, and the le­gal­ity of his ap­point­ment of Lt Gen Tlali Kamoli as the com­man­der and its po­lar­iz­ing ef­fect on the LDF, among oth­ers, the LDF ob­structed the Com­mis­sion in three ma­jor re­spects.

Firstly, the LDF re­port­edly re­fused to hand-over for foren­sic in­spec­tion gun(s) used in the killing of the slain LDF com­man­der, the ve­hi­cle used to con­vey the gen­eral af­ter he was shot and re­port­edly re­fused the com­mis­sion­ers ac­cess to the Makoanyane Mil­i­tary Hospi­tal (MMH) where the gen­eral was con­veyed.

Se­condly, the LDF flatly re­fused, with their now in­fa­mous, “No com­ment, my Lord, and that is your opin­ion, my Lord” replies to ques­tion­ing by com­mis­sion­ers dur­ing cross-ex­am­i­na­tion by both coun­sel and the com­mis­sion­ers, thereby thwart­ing the com­mis­sion to elicit the truth.

Thirdly, the LDF flatly re­fused the com­mis­sion’s re­quest to re­lease the 22 de­tained sol­diers at Maseru Max­i­mum se­cu­rity Pri­son to the Com­mis­sion to tes­tify be­fore it, in the end forc­ing the com­mis­sion to aban­don its man­date three-quar- ters of the way.

For its part, the civil­ian author­ity of the LDF that ought to ex­er­cise ul­ti­mate con­trol over the army seem­ingly acted in sync with the army as no word of rep­ri­mand or call­ing the LDF to or­der ever em­anated from that quar­ter.

The Le­sotho Mounted Po­lice ser­vice for its part, has also joined the band­wagon in vi­o­lat­ing the law yet it is sup­posed to be the epit­ome of law-en­force­ment.

Gov­ern­ment has through very con­tro­ver­sial pro­ce­dures, if any were con­sid­ered at all, awarded a multi-mil­lion mal­oti gov­ern­ment trans­port six-month con­tract to a South African firm. The po­lice ser­vice in­stead of abid­ing with the rel­e­vant leg­is­la­tion with the ac­tive sup­port of the gov­ern­ment is seem­ingly vi­o­lat­ing the law ever day of the week.

Their ve­hi­cles as th­ese con­tracted by gov­ern­ment, bear “y” Le­sotho reg­is­tra­tion and south African reg­is­tra­tion num­ber plates that are dif­fer­ent from those re­flected on the discs, con­trary to the law.

The Mo­tor Ve­hi­cle In­sur­ance Or­der, 1989 says in its pre­am­ble: “to pro­vide for the pay­ment of com­pen­sa­tion for cer­tain loss or dam­age un­law­fully caused by the driv­ing of cer­tain mo­tor ve­hi­cle and to pro­vide for mat­ters in­ci­den­tal thereto”.

In sec­tion 6(1) un­der “Liability of In­surer”, the Or­der pro­vides: The in­surer shall be obliged to com­pen­sate any per­son for any loss or dam­age which the third party has suf­fered as a re­sult of


A bod­ily in­jury to him­self;

b) The death of any bod­ily in­jury to any per­son; either case caused by or aris­ing out of the driv­ing of a reg­is­tered mo­tor ve­hi­cle in Le­sotho, if the in­jury or the death is due to neg­li­gence or other un­law­ful act of the per­son who drove the reg­is­tered mo­tor ve­hi­cle or of the owner or his ser­vant in the ex­e­cu­tion of his duty.

Fur­ther, the Road Trans­port Act, 1981 pro­vides its pre-am­ble that: “To pro­vide for a co-or­di­nated de­vel­op­ment and flex­i­ble con­trol of the means of and fa­cil­i­ties for road trans­port by way of per­mits in ac­cor­dance with the trans­port pol­icy ap­proved by gov­ern­ment and for con­nected pur­poses”.

sec­tion 26 of the same Act stip­u­lates: A per­son who uses a ve­hi­cle in con­tra­ven­tion of this Act, be­ing the owner of the ve­hi­cle, per­mits it to be used and a driver or other per­son in charge of any au­tho­rizes ve­hi­cle in con­tra­ven­tion of the per­mit to which it re­lates to, or be­ing the owner of such ve­hi­cle per­mits it to be used, is guilty of an of­fence.

To demon­strate that the LMPS know that they are vi­o­lat­ing the law, when driv­ing th­ese south African ve­hi­cles in Le­sotho they dis­play false Le­sotho num­ber plates and when they cross into south Africa, they dis­play cor­rect num­ber plates that cor­re­spond with the discs on the wind­shields of the said ve­hi­cles.

One of the ba­sic ra­tio­nales for proper reg­is­tra­tion of ve­hi­cles is to en­sure easy iden­ti­fi­ca­tion and for rev­enue col­lec­tion so that the road trans­port in­fras­truc­ture can be up­graded and main­tained yet all this con­duct by the po­lice flies in the face of this car­di­nal ob­jec­tive.

In pur­suit of this noble goal among oth­ers, the Le­sotho Rev­enue Author­ity (LRA) was es­tab­lished by an Act of Par­lia­ment in 2001 and be­came op­er­a­tional in 2003.

Prin­ci­pally re­spon­si­ble for the as­sess­ment, col­lec­tion and remit­tance to the gov­ern­ment of pub­lic rev­enues, the LRA is charged with ad­min­is­ter­ing the tax laws in an im­par­tial and even-handed man­ner, so as to pre­vent tax fraud and fis­cal eva­sion, and in so do­ing cre­ate a rev­enue en­vi­ron­ment that sup­ports fair com­pe­ti­tion be­tween busi­nesses and treats all in­di­vid­u­als as equal.

Ac­cord­ing to its Act of 2001, the LRA in­cor­po­rates the func­tions of the old In­come Tax, Cus­toms and Ex­cise and sales De­part­ments that was es­tab­lished to en­hance the ef­fi­ciency and ef­fec­tive­ness of rev­enue col­lec­tion and to pro­vide an im­proved ser­vice to the pub­lic. The LRA is re­quired to main­tain the high­est stan­dards of financial in­tegrity and cor­po­rate gov­er­nance.

On the ba­sis of the fore­go­ing it goes with­out say­ing that the crit­i­cal road trans­port rev­enue is daily be­ing eroded some­times il­le­gally by ve­hi­cles that are taxed in south Africa but us­ing our di­lap­i­dated roads that need to be up­graded from rev­enue col­lected by the LRA. This is mis­con­duct com­mit­ted by the gov­ern­ment and the po­lice. It is a shame­ful!

The gov­ern­ment and in­sti­tu­tions in Le­sotho such as the LDF, LMPS and in­deed very se­nior author­i­ties that are at the fore­front of erod­ing the rule of law and ju­di­cial in­de­pen­dence and are now at the van­guard of an­ar­chy and may­hem con­trary to their con­sti­tu­tional man­date and con­ven­tion. Un­less some­thing is done to ar­rest and re­verse that rot and the slide, this im­pov­er­ished coun­try is headed for an­ar­chy and be­ing the laugh­ing stock of the world.

(Part II)

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