Did the PM properly apply the law?
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.