Lesotho slowly sliding into anarchy
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.