Lesotho at crossroads
This is why both President Zuma of South Africa and President Nyusi of Mozambique spelled out clearly that the Phumaphi recommendations will have to be implemented. It is no longer about whether those recommendations will be implemented but how and when those will be implemented.
The second milestone of the Summit was that it brushed aside the Lesotho Government’s arguments that it was precluded from accepting the Phumaphi Report because of an on-going court case by Hashatsi meant to quash the Commission. In paragraph six the Double Troika made it clear that “..court decision taken against the Commission of
Inquiry is of no legal effect, and will not bind SADC and its Institutions”. It is not significant that subsequently Justice Monaphathi of the Lesotho High Court ruled that the SADC can be sued in Lesotho. International legality in this matter will always be in favour of SADC rather than Lesotho. This declaration in one stroke dismantled a carefully choreographed plan to avoid accountability for state agents.
Thirdly the Double Troika Summit expressed its displeasure that the Lesotho Government has not undertaken the constitutional, public sector and security sector reforms which had been submitted by the Facilitator. The Government was accordingly urged to submit a roadmap to the Summit in August 2016.
The issue here is that the Double Troika having identified the root of the problem was now focused on ensuring that they do not have to undertake their fire brigade role again in Lesotho. Security and institutional reforms are long overdue. But more importantly they can only be undertaken under SADC supervision. The political class in Lesotho is unlikely to undertake such an important task on its own.
Key Issues of the Phumaphi Report lthe criminal investigations of the death of “..Brigadier Mahao be pursued vigorously and that LMPS is empowered and resourced accordingly.” It goes on to point out that the investigations must be done expeditiously, and comprehensively, and without any hindrance. All physical evidence, it goes on must be handed over. The critical point here is that some of the suspects have already been identified. It also means that the vehicles, weapons and other related matters must be handed in to the police. The whole edifice of a cover-up therefore has nowhere to hide. It will collapse.
lthe Commission more importantly has recommended and SADC has endorsed that Lt. General Kamoli be relieved of his duties as Commander LDF, and all LDF officers implicated in cases of murder, attempted murder and treason be suspended immediately while investigations in their cases proceed in line with international best practice. Action on this will unblock several bottlenecks in the Lesotho political process.
It will at one level ensure that when security reform is done, people who have been involved and implicated in some of the recurring instability and human rights violations will no longer be able to influence the direction of the security reform. It will also ensure that those in the opposition leadership would be reassured that they can return from exile, when the person they accused of threatening them is no longer in charge of the LDF.
lthe Commission has also identified several army officers from the level of Brigadier to Lance Corporal who have avoided charges of treason; scores of other LDF Officers who have also avoided the courts for cases ranging from murder to assault in Maseru, Morija, Mafeteng, Mohale, and Mokhotlong. The names of all those are available. The Commission has recommended that this syndicate be dismantled and those people should face the courts. This is another milestone.
lfinally the Commission reiterated the urgency of undertaking Constitutional, public sector and security reforms in order to ensure that among other things, the security establishment is under civilian control. Secondly in order to ensure that the army has no role in internal security matters.
The question therefore is what will happen now that we have reached this stage. It is clear that on our own, in Lesotho the above agenda is not achievable. We however know that this is the only route for us whether we
like it or not.
Possible Obstacles to SADC Directives It is rare to find that a country has to face outsiders who tell it that it has to implement its laws when crimes have been committed. When an individual murders another, the matter does not require a commission of inquiry. It needs professional police officers to investigate and take suspects to court. It became apparent during the proceedings of the Phumaphi Commission when Sechele, one of the officers of the LDF, testified that the police cannot freely investigate crimes committed by soldiers.
As has already been observed, Prime Minister Mosisili has over the past few weeks been talking about sovereignty and that the Government will choose what to implement in line with the Public Inquiries Act. The first decision which he faces is to relieve the Commander of LDF of his duties. This will be the most difficult task. In a situation where civilian authorities are fearful of the army, this will always be the case. He has an option however. He will be obliged to inform and ask for assistance from SADC.
This self-created obstacle is however key to the solution of all other security issues in Lesotho. The point is that those who have directed that the Commander of LDF be removed are also ultimately responsible to remove him if the Lesotho Government fails to do. We must always remember that in international relations the powerful do what they can and the weak suffer what they need to suffer.
SADC also envisages the arrest of all the over LDF offices who have been harboured from the courts. It is a minor obstacle as long as the head of the organisation has been removed. All others will know that they will have the same fate. In essence, I argue that the only obstacle that the Government faces is the self-created ones.
In 1998 the government headed by Prime Minister Mosisili faced collapse and appealed for help to stay in office. He thus knows that all the obstacles can be removed by SADC. Non-compliance with the SADC directive will thus be out of his willingness to sacrifice the country in order to protect those in the military who have committed crimes.
Now that the report has been submitted, SADC will most probably operationalise its Oversight Committee to ensure that there is full compliance. That is what will ensure that the implementation plan for the first phase of the recommendations-accountability issues goes according to plan. The long-term constitutional and other reforms will follow after August 2016.
Conclusion It is no exaggeration that Lesotho is now in its most critical stage. It is a stage where we are on probation to perform in line with all the good governance codes or to suffer the consequences of failure. Two things are important to note here. First, SADC can enforce its decisions on Lesotho with ease. Whatever action SADC takes will be painful, but will be a necessary medicine to bring us back from the politics of old. The threat of suspension is real and that would be devastating for the country. A poor country appealing for food aid cannot afford to alienate the Southern African region.
Secondly, Lesotho government is fully aware that international partners are determined to enforce accountability. The day after the Summit in Gaborone for example, the US Ambassador to Botswana went to SADC Secretariat in Gaborone and made it clear that the US fully supports SADC stance on Lesotho.
This is a reiteration of the statements made by the US Ambassador to Lesotho on issues of accountability. But more ominously the leadership of the Millennium Challenge Corporation (MCC) has amongst it conditions for considering a grant to Lesotho indicated that accepting and implementing the recommendations of Phumaphi Report is central. Losing the Compact in order to protect a few people to answer for their actions would be incomprehensible.
When SADC declared war on impunity, by endorsing Phumaphi’s report, a message should have got to the government of Lesotho that the old ways of doing things are gone for good. All that has to happen is develop an implementation plan which, as President Nyusi indicated in Addis Ababa recently, is transparent. Lesotho needs new accountable ways of moving forward.