Ma­hao’s ap­point­ment was le­gal: SADC

Lesotho Times - - News - Lekhetho Nt­sukun­yane

THE Jus­tice Mpa­phi Phumaphi’s re­port on Le­sotho’s in­sta­bil­ity says for­mer prime min­is­ter Thomas Tha­bane acted within his le­gal au­thor­ity in ap­point­ing the late Maa­parankoe Ma­hao as army com­man­der.

Ac­cord­ing to the re­port, which was tabled in the Na­tional As­sem­bly on Mon­day by Prime Min­is­ter Pakalitha Mo­sisili, Dr Tha­bane had no le­gal obli­ga­tion to con­sult his then coali­tion part­ners in mak­ing the ap­point­ment.

Lt-gen Ma­hao was ap­pointed Le­sotho De­fence Force (LDF) com­man­der on 29 Au­gust 2014 af­ter Lt-gen Kamoli was dis­missed by Dr Tha­bane on for al­leged in­sub­or­di­na­tion. How­ever, Lt Gen Kamoli re­jected the dis­missal chal­leng­ing its le­git­i­macy.

How­ever, af­ter Dr Tha­bane re­lin­quished power in the wake of the 28 Fe­bru­ary 2015 snap elec­tions, the seven-party coali­tion govern­ment led by Prime Min­is­ter Pakalitha Mo­sisili re­in­stated Lt-gen Kamoli, ar­gu­ing that his dis­missal and Lt-gen Ma­hao’s pro­mo­tion were il­le­gal. Lt Gen Kamoli was re­in­stated in a Govern­ment Gazette dated 21 May 2015 with an­other gazette is­sued on the same day ter­mi­nat­ing Lt-gen Ma­hao’s ap­point­ment as LDF com­man­der.

The 62-page re­port notes that then Bri­gadier Ma­hao was on sus­pen­sion and fac­ing a court mar­tial “and there­fore not pro­motable” at the time of his ap­point­ment.

“How­ever, ev­i­dence was led to the ef­fect that the for­mer Prime Min­is­ter, Dr Thomas Tha­bane dis­solved the court mar­tial which au­to­mat­i­cally can­celled the sus­pen­sion of Bri­gadier Ma­hao through a let­ter ad­dressed to Ma­jor Gen­eral Poopa dated 28th Au­gust 2014,” reads the re­port.

The 10-mem­ber com­mis­sion notes that the dis­so­lu­tion of the court mar­tial was chal­lenged by ev­i­dence from govern­ment and LDF of­fi­cials who ar­gued that Dr Tha­bane had no pow­ers to dis­solve the court mar­tial that he did not con­vene.

“A Le­sotho De­fence Force (Del­e­ga­tion of Pow­ers) Le­gal No­tice No.131 of 2000 which del­e­gates the func­tions to con­vene a Court mar­tial to the Com­man­der of LDF was sub­mit­ted as ev­i­dence prov­ing the loss of pow­ers for con­ven­ing a Court mar­tial by the prime min­is­ter, ex­cept for cases re­lat­ing to mutiny,” it states.

“Ev­i­dence fur­ther shows that the for­mer prime min­is­ter had ear­lier dis­solved the court mar­tial through a let­ter dated 26th Fe­bru­ary 2014, but upon ad­vice or ‘fur­ther re­flec­tion’ he de­cided to with­draw the dis­so­lu­tion of the court mar­tial and con­se­quently wrote to Lieu- ten­ant-gen­eral Kamoli on 4 March 2014 in­form­ing him to pro­ceed with the court mar­tial to its fi­nal­ity. It could be said the lat­est dis­so­lu­tion was af­ter an­other ad­vice or re­flec­tion on the mat­ter.”

How­ever, the re­port cites the LDF Act No. 4 of 1996 at Sec­tion 92(1) which gives the Min­is­ter of De­fence pow­ers to con­vene and con­sti­tute a court mar­tial and the pow­ers to dis­solve it is pro­vided for at Sec­tion 100(1) of the same Act.

“Th­ese pro­vi­sions, read with the Le­sotho De­fence Force (Del­e­ga­tion of Pow­ers) Le­gal No­tice No.131 of 2000 del­e­gates the func­tions to con­vene a court mar­tial to the Com­man­der of the LDF,” notes the re­port.

“Gen­er­ally, the prin­ci­ple of del­e­ga­tion of pow­ers im­plies that even where a func­tion or power has been del­e­gated to an­other to per­form or use, that fact does not pre­vent the dis­charge of del­e­gated pow­ers by the per­son or body who del­e­gated it.

“Thus, the del­e­ga­tee (sic) (Min­is­ter of De­fence) is an agent and his ac­tions are on be­half of the repos­i­tory (Prime Min­is­ter) of the pow­ers so del­e­gated.

“The del­e­ga­tor still has the re­spon­si­bil­ity to ac­count for those del­e­gated pow­ers so much so even to stop any abuse or mis­use of the pow­ers he had del­e­gated. All that is re­quired is to in­form the del­e­ga­tee of the de­ci­sion.”

As a re­sult, the Com­mis­sion de­ter­mined that Dr Tha­bane was within his pow­ers to dis­solve the court mar­tial.

“The Com­mis­sion there­fore, finds that the for­mer Prime Min­is­ter Dr Thomas Tha­bane, acted intra vires (within the le­gal power or au­thor­ity) as pro­vided in Sec­tion 100 as read with 92 of the LDF Act, in dis­solv­ing the Court mar­tial be­cause he was the con­vener,” the re­port states.

The in­quiry also takes note of al­le­ga­tions made by Dr Tha­bane’s then coali­tion part­ner and Deputy Prime Min­is­ter Mo­thetjoa Mets­ing that Lt-gen Ma­hao’s ap­point­ment was done in bad faith and in an un­pro­ce­du­ral man­ner as it did not fol­low the coali­tion agree­ment that formed the govern­ment. How­ever, it also con­cludes that Dr Tha­bane did not legally need to con­sult his coali­tion part­ners in pro­mot­ing Lt-gen Ma­hao.

“In ad­vis­ing His Majesty the King for the ap­point­ment of Bri­gadier Ma­hao, the Prime Min­is­ter Dr Thomas Tha­bane acted within his le­gal au­thor­ity and there­fore the re­sul­tant Le­gal No­tice is with­out flaws. The law is clear that he had no le­gal obli­ga­tion to con­sult on the ap­point­ment,” says the re­port.

The vo­lu­mi­nous re­port also touches on the as­ser­tion made by Dr Mo­sisili in de­mot­ing LtGen Ma­hao that the lat­ter’s ap­point­ment was il­le­gal be­cause Lt-gen Kamoli was not af­forded the right to be heard when he was fired by Dr Tha­bane.

“Ev­i­dence fur­ther in­di­cates that Lieu­tenant-gen­eral Ma­hao was given a chance to an­swer for him­self why the Prime Min­is­ter Pakalitha Mo­sisili could not ter­mi­nate his ap­point­ment and com­mis­sion as Com­man­der LDF,” the re­port notes.

“Ev­i­dence shows that the Prime Min­is­ter Pakalitha Mo­sisili was not con­vinced by Lieu­tenant-gen­eral Ma­hao’s re­sponse and went ahead to ad­vise His Majesty the King to ter­mi­nate his com­mis­sion as Com­man­der LDF, A Le­gal No­tice No. 60 of 21st May 2015 was pub­lished which ter­mi­nated Lieu­tenant-gen­eral Ma­hao’s com­mis­sion as Com­man­der LDF ef­fec­tively from 22nd May 2015.

“This was fol­lowed by a let­ter dated 22nd May 2015 to Lieu­tenant Gen­eral Ma­hao in­form­ing him of his re­moval as Com­man­der LDF and that he re­verted back to his pre­vi­ous rank of Bri­gadier. Ev­i­dence fur­ther shows that Lieu­tenant-gen­eral Ma­hao chal­lenged his re­moval through the courts of Le­sotho and the mat­ter is still be­fore the courts.”

How­ever, the com­mis­sion states that Dr Mo­sisili acted “ir­reg­u­larly” in ask­ing Lt-gen Ma­hao why he could not be fired for ac­cept­ing the ap­point­ment when he knew that there was an in­cum­bent com­man­der and fac­ing a court mar­tial.

“The fact of the mat­ter was that the court mar­tial was si­mul­ta­ne­ously dis­solved with his ap­point­ment,” states the re­port.

“It was un­prece­dented in terms of mil­i­tary prac­tice and for dis­ci­pline pur­poses for some­one who had been ap­pointed com­man­der of a De­fence Force and sub­se­quently de­moted and con­tinue to serve. The mil­i­tary prac­tice is to re­tire one who has reached such an ap­point­ment.”

In the case of Lt-gen Kamoli, the com­mis­sion con­cluded that his re­in­state­ment by Dr Mo­sisili last May was within the law, al­though it queried the premier’s de­ci­sion to make the ap­point­ment with ef­fect from 29 Au­gust 2014 when he was fired.

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