SADC: Strug­gle for or­der and ac­count­abil­ity in Le­sotho

Lesotho Times - - Puzzle & Opinion -

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It’s sig­nif­i­cant that all those who fol­lowed Col Sechele in giv­ing ev­i­dence to the Com­mis­sion, in­clud­ing the prime min­is­ter re­fused to dis­close the names of the sol­diers who killed Ma­hao and also the mur­der weapons and also the ve­hi­cles used were not sur­ren­dered to the in­ves­ti­ga­tors or the Com­mis­sion al­lowed to have ac­cess to them.

c) Third, one of the key is­sues which the Phumaphi Com­mis­sion was man­dated to un­der­take was the al­leged mutiny plot. The Com­mis­sion was de­nied ac­cess to the de­tained sol­diers who were held at the max­i­mum prison. De­spite clear in­di­ca­tions by the sol­diers that they wanted to meet the Com­mis­sion, they were kept away from it by the LDF com­mand. This was the most bla­tant ob­struc­tion of the in­ves­ti­ga­tions.

De­spite th­ese ob­struc­tions, the Com­mis­sion was able to hear grip­ping tes­ti­monies about the ac­tiv­i­ties of the LDF com­mand de­ter­mined to ob­struct jus­tice; by act­ing as a haven for crim­i­nals within its ranks by re­fus­ing to co­op­er­ate with the po­lice on in­ves­ti­ga­tions in­clud­ing those of mur­der; and the in­hu­mane tor­ture of the de­tained sol­diers. It is th­ese trou­bling things which inevitably will be part of the Phumaphi re­port which has now been tabled and dis­cussed by the Ex­tra­or­di­nary Troika Sum­mit of SADC Heads of State and Govern­ment in Sand­ton, South Africa on 5 De­cem­ber 2015. The re­port was sub­mit­ted and dis­cussed in spite of claims and at­tempts by govern­ment to de­lay its sub­mis­sion un­til a case by Lieu­tenant-colonel Tefo Hashatsi against both the govern­ment and SADC was fi­nalised in the courts.

Sig­nif­i­cance of the Hashatsi case Lt-col Hashatsi was among the LDF mem­bers who were sum­moned and gave ev­i­dence to the Phumaphi Com­mis­sion. He was asked per­ti­nent ques­tions about his pre­vi­ous state­ments about the re­moval of the LDF com­man­der, where he said that the lat­ter would be re­moved on his dead body. He was sum­moned once again to ap­pear be­fore the Com­mis­sion but sought to avoid ap­pear­ing again.

This was af­ter ad­di­tional ev­i­dence had been heard by the Com­mis­sion on his role in the mat­ters un­der in­ves­ti­ga­tion. His re­sponse was to launch an ur­gent ap­pli­ca­tion in the High Court seek­ing amongst other things that the Com­mis­sion must be dis­banded and any men­tion of his name in the re­port be for­bid­den. There is noth­ing novel about the case ex­cept in the fol­low­ing.

First, it must be noted that al­most all the is­sues which were can­vased in Lt-col Hashatsi’s case were pre­vi­ously raised by the same lawyer who now rep­re­sents Lt-col Hashatsi in the last day of the Com­mis­sion’s hear­ing in Maseru be­fore the lat­ter moved to Thaba-nchu in South Africa to hear the ev­i­dence of ex­iles. The lawyer was then rep­re­sent­ing the govern­ment. In this case the first re­spon­dent was the prime min­is­ter, who in­ci­den­tally did not re­spond to the mat­ters raised by Lt-col Hashatsi. In­deed, no­body on the govern­ment side replied to Lt-col Hashatsi’s pa­pers. It was a clear case of a con­spir­acy to sue one­self. In this case, the face was that of Lt-col Hashatsi, but the real case was of the govern­ment su­ing it­self and ob­vi­ously not an­swer­ing any of the is­sues raised. The only prob­lem with that strat­egy was that govern­ment did not fore­see the pos­si­bil­ity of the Ma­hao fam­ily ap­ply­ing to be en­joined to the case. The as­sump­tion was that judge­ment in their favour was al­most guar­an­teed. The grant plan could there­fore not work ex­cept that it would now be used as a de­lay­ing tac­tic on the ba­sis that there is a court process on is­sues re­lated to the Com­mis­sion.

Se­condly, su­ing SADC in it­self was a panic mea­sure, but also a gi­gan­tic gam­ble by Lt-col Hashatsi and those around him. SADC mem­ber states are fully aware that in terms of their treaty obli­ga­tions, the bloc is not sub­ject to any court process in the host coun­try. This case brought a firm re­buke by SADC to Le­sotho’s For­eign min­is­ter who was re­minded of Le­sotho’s obli­ga­tions. In­deed this mat­ter was dealt with by the Troika al­ready re­ferred to. Among other things, the “... Sum­mit noted with great con­cern that the Com­mis­sion of In­quiry has been taken to court, and man­dated the Fa­cil­i­ta­tor to ex­pe­di­tiously com­mu­ni­cate the con­cern of SADC to the King­dom of Le­sotho”. This con­cern is couched in diplo­matic lan­guage, but is a se­ri­ous re­buke with im­pli­ca­tions for non-com­pli­ance.

Col­lapse of the rule of law The 2015 elec­tions in Le­sotho have mag­ni­fied the de­clin­ing and/or col­lapse of the rule of law as we have known it. We need not em­pha­sise that democ­racy can­not func­tion in a sit­u­a­tion where the rule of law has been un­der­mined. Courts of law, rather than the ex­ec­u­tive branch of govern­ment, are the guardians of the free­doms cit­i­zens have. When ev­ery­thing else has failed, peo­ple in demo­cratic so­ci­eties know that the courts will de­ter­mine the rights of cit­i­zens with­out fear or favour and govern­ment is obliged to im­ple­ment such de­ci­sions. In Le­sotho, this no longer hap­pens to all. The pow­er­ful are above the law.

If any­thing, mat­ters be­tween Mareka and 22 oth­ers V the Com­man­der of the Le­sotho De­fence Force; and that of Mot­seko V Com­man­der of the Le­sostho De­fence Force il­lu­mi­nate the is­sues at hand. Sev­eral court de­ci­sions have been handed over in cases brought by de­tained sol­diers, but al­most all have been ig­nored. For one rea­son or an­other, the at­tempt has been made to cir­cum­vent the court rul­ings by seem­ingly re­leas­ing the sol­diers and then im­me­di­ately re-ar­rest­ing them.

It is in th­ese cir­cum­stances that in­ter­na­tional hu­man rights or­gan­i­sa­tions like Amnesty In­ter­na­tional have now launched a cam­paign on the law­less­ness in Le­sotho. In its alert, of 20, Novem­ber 2015, Amnesty brings to the fore that some of the de­tained sol­diers have been in de­ten­tion since May and have been tor­tured and could face a death penalty in an un­fair trial. It raises the fact that some of those de­tainees are held in soli­tary con­fine­ment which, in terms of in­ter­na­tional law, is re­garded as tor­ture. It is th­ese same sol­diers who have tried in vain to be re­leased af­ter the courts have ruled that they should be so re­leased. The rule of law has clearly col­lapsed and the norms which SADC sub­scribes to don’t ex­ist in Le­sotho. Noth­ing help­ful has been said by the Prime Min­is­ter in such a crit­i­cal sit­u­a­tion.

Is­sues aris­ing af­ter SADC Com­mis­sion re

port Among the most im­por­tant rea­sons for set­ting up the Com­mis­sion was the mur­der of Lt-gen Ma­hao. In all con­sti­tu­tional states, when­ever there is a crime, mur­der in­cluded, the mat­ter is a straight­for­ward po­lice mat­ter. Sus­pects are ar­rested and wait for their day in court later. It is only when de­fend­ing them­selves that sus­pects in court can raise what­ever de­fence they have. But even those sus­pects can­not raise the ques­tion of fol­low­ing or­ders or an au­tho­rised op­er­a­tion.

Nurem­burg long dealt with that. In Le­sotho, cases in­volv­ing the mil­i­tary tend to dis­ap­pear un­til there is con­flict within the mil­i­tary es­tab­lish­ment. We have seen those stretch­ing to the 1980s. When a state there­fore fails to pro­tect its cit­i­zens, the out­side world now has an obli­ga­tion to in­ter­vene. It is on this ba­sis also that the SADC Com­mis­sion came to be­ing. It was not an un­due in­ter­fer­ence in the in­ter­nal affairs of a state, but a way to “…de­fend and main­tain democ­racy, peace, se­cu­rity and sta­bil­ity” in ac­cor­dance with the ob­jec­tives of SADC. It bor­ders on the ab­surd to hear ju­nior of­fi­cers, who are not versed with in­ter­na­tional diplo­macy, be­gin to talk about sovereignty on mat­ters like this.

A re­lated is­sue here is that the pre­vi­ous in­ter­ven­tions of SADC in Le­sotho were of an emer­gency na­ture. The 1994 in­ter­ven­tion for ex­am­ple was to re­store an over­thrown govern­ment pri­mar­ily and later also to re­store the over­thrown Monarch. All those emer­gency ob­jec­tives were achieved. The 1998 mis­sion was sim­i­lar to the 1994 in­ter­ven­tion, but used dif­fer­ent in­ter­ven­tion mech­a­nisms. It also achieved its ob­jec­tive of restor­ing a col­laps­ing govern­ment.

The present in­ter­ven­tion which, for all in­tents and pur­poses, is an ex­ten­sion of the 2014 mis­sion is geared to find the in­di­vid­u­als, in what­ever po­si­tion, who have been in­volved in the mur­der of Lt-gen Ma­hao and also those who have been in­volved in desta­bil­is­ing the coun­try. It is not a short-term mis­sion but a mis­sion to en­sure ac­count­abil­ity and thus in­di­cate that sol­i­dar­ity is not un­lim­ited.

Now that the Troika has dealt with the re­port, it is clear that struc­tures for en­sur­ing that the cul­prits are brought to book, have al­ready been put in place or will be put in place at the ear­li­est. I would not be sur­prised in the forth­com­ing Ramaphosa mis­sion un­der the aus­pices of the Troika will be the last be­fore tan­gi­ble mea­sures are taken to bring back Le­sotho in the demo­cratic ethos of the re­gion.

The is­sues are clear. The Le­sotho cri­sis is routed in the army which has now be­come su­pe­rior to both the govern­ment and the courts in terms of its self-per­cep­tion. No so­lu­tion, there­fore, would work un­less it de­ci­sively deals with the lawless el­e­ments within the army. The govern­ment must ac­cord­ingly not be de­ceived by uni­formed ex­perts who claim that it can with­stand the de­ci­sions of SADC. Le­sotho does not have the political and diplo­matic ca­pac­ity to with­stand those of SADC. Mil­i­tar­ily, we all know that Le­sotho has no as­sets to write home about or to dent a SADC op­er­a­tion if it took place. lpro­fes­sor Se­jana­mane is a lec­turer in the Depart­ment of Political and Ad­min­is­tra­tive Stud­ies at the Na­tional Univer­sity of Le­sotho.

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