Did the PM prop­erly ap­ply the law?

Lesotho Times - - Opinion & Analysis - Ut­loang Ka­jeno

LE­SOTHO has a re­cent un­en­vi­able political his­tory of prime min­is­ters (PM’S) who make con­tro­ver­sial de­ci­sions which they stead­fastly ar­gue ben­e­fit the na­tion, while also ar­gu­ing they have stuck to the let­ter and spirit of the law. How­ever, their de­trac­tors have also ar­gued that they ap­plied the law im­prop­erly.

Sec­tion, 83(1) (4) Pro­ro­ga­tion of Par­lia

ment. In 2014, then premier Thomas Tha­bane in­voked sec­tion 83 (1) (4) of the con­sti­tu­tion, to ad­vice His Majesty the King to pro­rogue Par­lia­ment. This elicited a lot of un­prece­dented vit­riol and crit­i­cism that also not sur­pris­ingly em­anated from his ma­jor part­ner in the three-party coali­tion govern­ment; the Le­sotho Congress for Democ­racy (LCD).

The LCD, in­clud­ing the then main op­po­si­tion Demo­cratic Congress (DC) em­barked on a whirl­wind diplo­matic tour of the South­ern African De­vel­op­ment Com­mu­nity (SADC) coun­tries, ar­gu­ing that in their own words, “the Prime Min­is­ter had muz­zled the voice of the peo­ple by pro­rogu­ing Par­lia­ment”.

For his part, the PM ar­gued that he had in­voked the above sec­tion be­cause the com­bined congress move­ment wanted to mis­use the av­enue of vote of no con­fi­dence in his govern­ment to dis­lodge him from high political of­fice. The jury is still out as to which of the op­pos­ing sides was cor­rect.

The dis­agree­ment be­came so ugly that it fi­nally ren­dered the govern­ment dys­func­tional thereby forc­ing SADC to im­pose an early snap gen­eral elec­tion on Le­sotho. This elec­tion gave birth to the present seven-party coali­tion govern­ment, which it­self is ex­pe­ri­enc­ing sim­i­lar if not worse in­sta­bil­ity than its pre­de­ces­sor.

Pub­lic En­quiries Act, 1994 Let us as­sume Prime Min­is­ter Pakalitha Mo­sisili was cor­rect when he in­voked the Pub­lic En­quiries Act, 1994. On 25th June, 2015, for­mer Le­sotho De­fence Force (LDF) Com­man­der, Lieu­tenant-gen­eral Maa­parankoe Ma­hao was killed by his col­leagues for al­legedly re­sist­ing ar­rest.

This un­for­tu­nate saga forced Dr Mo­sisili, to in­vite SADC to in­sti­tute a ju­di­cial com­mis­sion of en­quiry to look into the cir­cum­stances sur­round­ing the killing of the for­mer com­man­der, among other Terms of Ref­er­ence (Tor’s).

Fast for­ward to 8t Fe­bru­ary, 2016, af­ter much nudg­ing by SADC to re­ceive the Com­mis­sion’s re­port and im­ple­ment its rec­om­men­da­tions, PM Mo­sisili, fi­nally re­lented and claimed now that this was a Le­sotho Com­mis­sion to be run by the laws of Le­sotho. How­ever, this is nei­ther here nor there. He hur­riedly con­vened Par­lia­ment to ta­ble the re­port in the au­gust house.

How­ever, as he had ear­lier in­ti­mated, he con­tro­ver­sially ex­punged cer­tain seg­ments of the re­port, as he ar­gued, in keep­ing with the Pub­lic En­quiries Act, sec­tion 4 (3) and (4) he is en­ti­tled to edit such seg­ments if he con­sid­ers them to be likely to com­pro­mise na­tional se­cu­rity, im­pinge on the pri­vacy of cer­tain in­di­vid­u­als and are likely to lead to political in­sta­bil­ity and pub­lic ret­ri­bu­tion against al­leged of­fend­ers.

The PM there­fore read a brief sum­mary of the re­port along the way heav­ily crit­i­ciz­ing it for its lack of fair­ness and trans­parency, pro­ce­dural fair­ness and lack of en­quiry as well as ty­po­graph­i­cal er­rors. In ef­fect it was a cri­tique.

This move by the PM sparked un­preceded hag­gling in the au­gust house amid al­le­ga­tions that he had ac­tu­ally doc­tored the re- port thus mak­ing it his own un­der the logo of SADC. As I put pen to pa­per the con­tro­versy seems likely to run un­til the next few months.

Fol­low­ing there­fore is anal­y­sis of what in my hum­ble view the source of the whole con­tro­ver­sial saga:

Sep­a­ra­tion of pow­ers This le­gal doc­trine pre­sup­poses that the lib­erty of the in­di­vid­ual is se­cure only if the three pri­mary func­tions of the state (leg­isla­tive, ex­ec­u­tive and ju­di­cial) are ex­er­cised by dis­tinct and in­de­pen­dent or­gans. It was pro­pounded by the French philoso­pher, Mon­tesquier (De L’espirit des Lois, 1748), who re­garded it as a fea­ture of the English Con­sti­tu­tion.

The doc­trine rec­og­nizes that while the ju­di­ciary is largely in­de­pen­dent, the leg­is­la­ture and the ex­ec­u­tive de­pend on one an­other and their mem­bers over­lap. The doc­trine had a great in­flu­ence over the form adopted for the con­sti­tu­tion of the USA and many other coun­tries.

Now in view of the above, my con­tention is that by so bla­tantly ex­pung­ing cer­tain seg­ments of the re­port for the com­mis­sion’s al­leged pro­ce­dural un­fair­ness, lack of trans­parency, equity, in­jus­tice and in­equity, the PM had in ef­fect ar­ro­gated the pow­ers of the courts which is the ap­pro­pri­ate in­de­pen­dent arm of govern­ment to spot and rem­edy such ir­reg­u­lar­i­ties.

The PM there­fore while os­ten­si­bly abid­ing by the law, usurped the pow­ers of the Ju­di­ciary. He strayed, for lack of a bet­ter term, into a ter­ri­tory that was not his. Ex fa­cie there­fore he acted in vi­o­la­tion of the doc­trine of sep­a­ra­tion of pow­ers. For all I care the PM is head of the ex­ec­u­tive not the ju­di­cial arm.

Rule (Nat­u­ral Jus­tice) This is a rule of fair play that orig­i­nated in the courts of the com­mon law to con­trol de­ci­sions of in­fe­rior courts and then grad­u­ally ex­tended to ap­ply equally to de­ci­sions of ad­min­is­tra­tive tri­bunals and any au­thor­ity ex­er­cis­ing ad­min­is­tra­tive pow­ers that af­fects a per­son’s sta­tus, rights or li­a­bil­i­ties.

Any de­ci­sion reached in con­tra­ven­tion of nat­u­ral jus­tice is void. In this re­gard there are two prin­ci­pal rules, (if the reader will only for­give my latin as I will en­deavor to de­fine): th­ese are nemo judex in causa sua (or in pro­pria causa), no man can be a judge in his own cause.

This means that any de­ci­sion, how­ever fair it may seem, is in­valid if made by a per­son with any fi­nan­cial or other in­ter­est in the out­come or any known bias that might af­fect his im­par­tial­ity.

The se­cond rule is that of andi al­terum partem rule (hear the other side). It states that a de­ci­sion can­not stand un­less the per­son di­rectly af­fected by it was given a fair op­por­tu­nity both to state his case and to know and an­swer the other side’s case.

My con­tention is that in re­la­tion to the Tor’s of the com­mis­sion the PM as head of the ex­ec­u­tive, an arm of govern­ment un­der which the LDF as an in­ter­ested party to the pro­ceed­ings falls, and which he is head of, can­not be a judge in his own case. This is ev­i­dent in his sting­ing crit­i­cism and at­tack on the re­port in de­fense of the LDF and sub­se­quent ex­punc­tion of all seg­ments that had to do with the LDF, him­self and this al­lies. His re­marks which I need not re­pro­duce here, are akin to rul­ing, a func­tion that con­sti­tu­tion­ally ought to have been ex­er­cised by an in­de­pen­dent court of law.

Fur­ther, the PM did not hear the other sides to the pro­ceed­ings, namely the Ma­hao fam­ily, and other (political) stake­hold­ers in the affairs of Le­sotho that were rep­re­sented at the com­mis­sion yet he pur­ported to pass judge­ment in their mat­ter and in a case that be­cause of his un­doubted huge in­volve­ment in, he was a ma­jor party to. This is a glar­ing vi­o­la­tion of the rules of nat­u­ral jus­tice that will for­ever cast con­tro­ver­sial as­per­sions on his bona fides and im­par­tial­ity.

Duty to pro­mote a law-abid­ing so­ci­ety A crime is de­fined as an act (or some­times a fail­ure to act) that is deemed by statute or by com­mon law to be a pub­lic wrong and is there­fore pun­ish­able by the state in crim­i­nal pro­ceed­ings. In or­der for a con­vic­tion to en­sure there must be prove be­yond rea­son­able doubt by the pros­e­cu­tion that the of­fence was com­mit­ted, be­fore courts of law. It is the pri­mary re­spon­si­bil­ity of ev­ery ci­ti­zen of sound mind and ap­pro­pri­ate age to re­port crime, let alone the PM who is at the apex of so­ci­ety and moral rec­ti­tude of our so­ci­ety.

Dis­turbingly, though in a move that leaves a sour taste in the mouth, the PM, by his own an­nounce­ment, to the na­tion through the au­gust house, edited out the names of sol­diers who were to be charged with mul­ti­ple crimes rang­ing from trea­son, mur­der, at­tempted mur­der, as­sault and many oth­ers. Un­for­tu­nately, this will in many quar­ters be in­ter­preted as the PM shield­ing crim­i­nal sus­pects from crim­i­nals ex­am­i­na­tion by hid­ing be­hind the cloak of na­tion se­cu­rity.

Na­tional se­cu­rity, in­ter­est and pri­vacy Sec­tion 8 (3) and (4) of Pub­lic En­quiries Act, 1994, which the PM says he is act­ing un­der in ex­pung­ing cer­tain por­tions of the re­port, does not, in my hum­ble view, pro­tect crim­i­nal sus­pects from pros­e­cu­tion for al­leged crimes but it only shields them from pub­lic dis­clo­sure for fear of re­tri­bu­tions by mem­bers of the gen­eral pub­lic. The PM, it seems, hid be­hind this sec­tion by in­ter­pret­ing it nar­rowly or lit­er­ally in or­der to avoid the mis­chief rule of in­ter­pre­ta­tion that seeks to es­tab­lish the in­ten­tion or the mis­chief that the leg­is­la­ture in­tended to elim­i­nate in pass­ing this piece of leg­is­la­tion. It is my hum­ble view, which 1 dare any­one to con­tra­dict, that no leg­is­la­ture even in op­pres­sive regime would dare leg­is­late for cit­i­zens let alone, mem­bers of the dis­ci­plined forces, to al­legedly com­mit crime and go un­pun­ished. It would be ab­so­lutely abom­inable in the ex­treme, and in­deed an ac­cept­able aber­ra­tion. So the PM it is humbly sub­mit­ted, acted im­prop­erly.

Free­dom of ex­pres­sion (to re­ceive in­for

ma­tion) Sec­tion 14 of the con­sti­tu­tion (our fun­da­men­tal

law) pro­vides that ev­ery per­son is en­ti­tled to (ex­cept with his own con­sent) shall not be hin­dered in his en­joy­ment of free­dom to re­ceive ideas and in­for­ma­tion in­ter­fer­ence and free­dom from in­ter­fer­ence with his cor­re­spon­dence.

My ar­gu­ment again here is that the PM seems to have un­wit­tingly de­nied this trau­ma­tized na­tion its free­dom to re­ceive in­for­ma­tion and know ex­actly what the find­ings and rec­om­men­da­tions of the com­mis­sion were in gen­eral and in par­tic­u­lar, to know who the per­pe­tra­tors of the al­leged crim­i­nal of­fences are. If this al­leged per­pe­tra­tors were known to the pub­lic, in­ves­ti­gated, pros­e­cuted and con­victed or dis­charged, this would bring clo­sure to this sad chap­ter in our his­tory and vi­o­lent past as a na­tion.

All th­ese ac­tions by the PM lend cre­dence to the un­for­tu­nate con­tention that law is not jus­tice but power to ex­er­cise con­trol over the masses. May it never be so!

The mo­ment our lead­ers across the spec­trum learn never to use the law to achieve their own per­sonal self­ish agen­das, the greater the ben­e­fit will be for this long-suf­fer­ing na­tion. As a foot­note, it is note­wor­thy that the PM has ex­punged cer­tain crit­i­cal seg­ments of the re­port with­out the au­tho­riza­tion of its cus­to­dian, SADC.

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