Open let­ter to Prime Min­is­ter Mo­sisili

Lesotho Times - - Feedback - Dear Mr Prime Min­is­ter, Of­fice of the Pres­i­dent-ac­tion for Peace and Sol­i­dar­ity.

On Mon­day 8 Fe­bru­ary 2016 you tabled, in the na­tional As­sem­bly, the wa­tered-down re­port of the SADC Com­mis­sion of In­quiry into dis­tur­bances of na­tional peace and se­cu­rity, pop­u­larly known as the Phumaphi Com­mis­sion re­port, af­ter the Com­mis­sion’s chair­man His Lord­ship Jus­tice Mpa­phi Pa­sivel Phumaphi.

In your state­ment af­ter hand­ing the re­port over to the Speaker of the na­tional As­sem­bly, you as leader of Govern­ment said you and your Govern­ment were prompted to in­vite SADC to form the Com­mis­sion af­ter the bru­tal killing of Lieu­tenant-gen­eral Maa­parankoe Ma­hao, and were keen to be seen as to get to the bot­tom of that tragedy, us­ing highly com­pe­tent and com­pletely dis­in­ter­ested per­sons from the egion.

To this was added, (i) the as­cer­tain­ment of whether it was true there was a mutiny in the LDF, and Lt-gen Ma­hao’s in­volve­ment therein; al­leged killings of op­po­si­tion mem­bers and kid­nap­ping of for­mer LDF mem­bers; (ii) pro­pri­ety of re­moval of Lt-gen Kamoli and his sub­sti­tu­tion with Lt-gen Ma­hao as Com­man­der of the LDF by the 2012 coali­tion govern­ment, and the re­ver­sal of the same by the 2015 coali­tion govern­ment; and (iii) claims that the re­turn of Lt-gen Kamoli caused divi­sions in the army and con­trib­uted to na­tional political and se­cu­rity in­sta­bil­ity.

You also said you had used your pre­rog­a­tive, con­ferred by the Pub­lic In­quiries Act no.1 of 1994 Sec­tion 8(3) and Sec­tion 8(4), to ex­cise names of per­sons fin­gered by the Com­mis­sion, and in some cases named for crim­i­nal pros­e­cu­tion, be­cause they were not given op­por­tu­nity to make rep­re­sen­ta­tions in pro­tec­tion of their good names be­fore the Com­mis­sion; and in the case of one Lt-col Tefo Hashatsi be­cause he had lodged a case in the High Court which was still pend­ing.

To start with this last one, you are turn­ing re­al­ity on its head here, Mr Prime Min­is­ter: whereas the law says that a per­son who has a case in court shall not be com­pelled to tes­tify be­fore a com­mis­sion lest s/he in­crim­i­nates her­self or him­self, Lt-col Hashatsi went to court af­ter tes­ti­fy­ing, to head off a se­cond ap­pear­ance subpoena — an an­tic for which the court thor- oughly cas­ti­gated him, while also stat­ing that he still had space to ex­er­cise the right of pro­tec­tion of his in­tegrity which he de­nied him­self by snub­bing the Com­mis­sion and rush­ing to court pre­ma­turely.

In some cases, Mr Prime Min­is­ter, you said the Com­mis­sion had steered into the ter­ri­tory from which it was shep­herded away by its own chair­man and SADC when you had given it man­date in that re­gard; for ex­am­ple, what you dub a “brief mil­i­tary op­er­a­tion on some po­lice sta­tions in Maseru” on that mem­o­rable Au­gust 30, 2014 Satur­day dawn; and you find it in­com­pre­hen­si­ble that some per­sons have been named for trea­son charges in that con­nec­tion — prob­a­bly for the now no­to­ri­ous, noc­tur­nal army siege of the State House which sent the then Prime Min­is­ter into hid­ing in South Africa.

By your own ad­mis­sion, Mr Prime Min­is­ter, and as was re­peat­edly made clear to both wit­nesses and coun­sel alike at the Com­mis­sion, this turf was cov­ered by the last of the Terms of Ref­er­ence, which pro­vided for prob­ing any other mat­ter in­ci­den­tal to the four main ar­eas of the pith of the Com­mis­sion’s re­mit.

You said, whereas the Act em­pow­ered you to ex­er­cise in­for­ma­tion as you did in the in­ter­ests of na­tional se­cu­rity on the one hand, and pro­tec­tion of pri­vacy and right to fair­ness for in­di­vid­u­als on the other; it was the lat­ter and not the for­mer that in­formed and mo­ti­vated your ex­pung­ing the names as you have done.

This you in­voked in the name of the rule of law. Eerily enough, when you were asked in the Se­nate whether, in con­ceal­ing the names of al­leged per­pe­tra­tors, you also thought of the vic­tims, and specif­i­cally whether you shared your con­sid­er­a­tions with the fam­ily of the late Lt-gen Ma­hao; you ca­su­ally re­torted that the fam­ily was part of the pub­lic and would meet the de­tails in the pub­lic do­main like ev­ery­one else.

It is a twisted logic that the pro­tec­tion of sus­pects’ pri­vacy should su­per­sede the need for pun­ish­ment of the ap­par­ently ar­bi­trary ter­mi­na­tion of life. We find it equally strange that you would prize more highly the sus­pect’s pri­vacy than the sanc­tity of the de­ceased’s body, which you cal­lously pub­lished.

This slant of yours is not sur­pris­ing, given your (govern­ment’s) fail­ure or re­fusal to cause the State to co-op­er­ate with the Com­mis­sion, and var­i­ous threats meted out to it — in­clud­ing de­nial of ac­cess to ar­bi­trar­ily im­pris­oned mutiny sus­pects and boy­cott or thinly veiled crim­i­nal­i­sa­tion of col­lec­tion of ev­i­dence from for­eign soil (South Africa).

In so do­ing, you how­ever, de­nied your­self a rare op­por­tu­nity to show states­man­ship and “re­store the dig­nity of Le­sotho” as you vowed to do when you took of­fice, by ex­tri­cat­ing the State of Le­sotho from the clutches of ban­dits and rogues whom you are now patently shield­ing.

This is not only an af­front to the dig­nity of the de­ceased, and to the un­told suf­fer­ing of those who sur­vive them, vic­tims and fam­i­lies of those ar­bi­trar­ily kid­napped, tor­tured and im­pris­oned for choos­ing to up­hold good con­science; but also to re­gional neigh­bours whom you am­ply praise and thank for rou­tinely in­ter­ven­ing in the self-ful­fill­ing, cycli­cal political crises of Le­sotho “in the best in­ter­ests of Le­sotho and Ba­sotho, and not only a sec­tion of in­di­vid­u­als”.

It could be truly, and trag­i­cally un­for­tu­nate if the pub­licly, in­deed in­ter­na­tion­ally, stated com­mit­ment of your good self to find­ing a last­ing rem­edy to the wan­ton dis­re­spect for hu­man rights, sanc­tity of life, and rule of law, turned out to be a thread­bare bluff, pulling wool over the eyes of all and sundry; in­clud­ing the in­ter­na­tional bod­ies which lauded your com­mend­able move and await with bated breath the ma­te­ri­al­i­sa­tion thereof.

It is a com­monly held uni­ver­sal prac­tice that no-one should be a ref­eree where s/he is also a con­tes­tant; or judge where s/he is lit­i­gant. As head of Govern­ment and on whom ma­jor­ity of the Tors turn as selec­tor of army com­man­der em­broiled in mat­ters which are sub­ject of the Com­mis­sion’s work; and mas­ter of the Min­is­ter of De­fence who at the least can­not pass with­out men­tion in this mi­lieu —you Mr Prime Min­is­ter are sim­ply not qual­i­fied to judge the pro­pri­ety or oth­er­wise of the Com­mis­sion’s re­port list­ing those in­volved in the acts whose cir­cum­stances and ac­cept­abil­ity the Com­mis­sions was in­ves­ti­gat­ing.

The case in point is per­haps the self-same Hashatsi; where the State as re­spon­dent in­clud­ing your­self, did noth­ing to chal­lenge an at­tempted emas­cu­la­tion in­clud­ing your­self of the Com­mis­sion, and whose prayers are now, not sur­pris­ingly, in­voked as rea­sons for your adul­ter­at­ing the re­port — from for­eign sourc­ing of ev­i­dence in South Africa, to pri­vacy pro­tec­tion and right to fair trial.

The dis­patch­ing of the Re­port to a par­lia­men­tary port­fo­lio com­mit­tee po­ten­tially con­demn­ing it to the same fate of all the laws that emerge there­from as they came from the Ex­ec­u­tive, can only be a win­dow dress­ing meant to cast on it a hol­low clout of be­ing “prop­erty of a sov­er­eign na­tional par­lia­ment”, along the lines of pros­ti­tut­ing the sovereignty of Le­sotho’s courts which is hardly re­spected by the State — only for thwart­ing the work of the Com­mis­sion and fruits thereof.

Against the back­ground of the fore­go­ing, we be­seech you Mr Prime Min­is­ter, to own up to your Jan­uary 18, 2016 un­der­tak­ing to “pro­vide feed­back” on, and si­mul­ta­ne­ously pub­lish, the Phumaphi Com­mis­sion re­port as adopted by the SADC Dou­ble Troika Sum­mit of that date.

Mr Prime Min­is­ter, you con­ve­niently for­get the 1998 SADC Com­mis­sion into ve­rac­ity of the pub­lished gen­eral elec­tion re­sults, chaired by the late Jus­tice Pius Langa of South Africa and made of 14 per­sons from Botswana, Zim­babwe, and South Africa; which did not re­port to your of­fice be­cause it did not have to, as in­deed the Phumaphi Com­mis­sion fol­lowed suit be­cause of shar­ing the same pro­file; and in­stead men­tion the fate of your very own 2001 Leon Com­mis­sion into Post-elec­tion Political Dis­tur­bances, and your 2010 Steyn Com­mis­sion into at­tacks on State House and Makoanyane Bar­racks, to which you con­sciously know the two SADC com­mis­sions can­not be re­duced.

By pre­tend­ing that, in be­ing hon­oured with con­vey­ing the Phumaphi re­port to the Ba­sotho this also gives you to ar­ro­gate to your­self to dis­fig­ure what is the re­gional or­gan­i­sa­tion’s prop­erty, des­tined for de­ploy­ment through the hand of the head of Govern­ment of Le­sotho. You are get­ting things it wrong at the great cost to the cause of jus­tice.

By this open let­ter we also take this op­por­tu­nity to call upon the ap­pro­pri­ate in­sti­tu­tions of SADC to promptly pub­lish the Re­port as it was adopted by the Dou­ble Troika Sum­mit, in the event that you are con­strained by the cur­rent morass into which you have been driven, from so do­ing.

We equally ap­peal to all quar­ters of our cit­i­zenry, friends of Le­sotho and the re­gional pow­ers in th­ese try­ing times, to pre­vail on the State of Le­sotho to re­frain from politi­cis­ing this sub­ject; which could well be a roadmap out of the quag­mire in which we have re­mained ar­rested over the past few years.

In the in­terim, we once again ap­peal to you and your govern­ment to ven­er­a­bly dis­charge your com­mit­ments to SADC, re­port hon­estly and faith­fully, in­clud­ing re­lease of the al­leged mu­nity sus­pects. It is re­gret­table that in pre­tend­ing to “ta­ble and there­fore pub­lish” the re­port, you did not in fact pub­lish but only spoke to what you had done to it; that the na­tion was left in the dark about its ac­tual find­ings and con­clu­sions on its full charge.

It is in­cum­bent on you and your govern­ment as man­agers of our na­tional affairs to fully pub­lish the re­port, nor­malise the political sit­u­a­tion by con­triv­ing an all-party, and multi-stake­holder fa­cil­ity for pros­e­cut­ing the im­ple­men­ta­tion of the find­ings, to dis­pel the dark cloud of hate, un­cer­tainty and sus­pi­cion that has been over­hang­ing the na­tion till now.

It is also our well-founded fear that your state­ment to the na­tional As­sem­bly that some of the rec­om­men­da­tions “may not see the light of day” smacks of uni­lat­eral de­ter­mi­na­tion to weed out what might well be last­ing so­lu­tion to na­tional prob­lems if they ad­versely af­fect some per­sons you closely hold in pri­vate af­fec­tion. It would be de­sir­able if you promptly pub­lished a cal­en­dar of ex­e­cu­tions of the rec­om­men­da­tions to bring the na­tion into your con­fi­dence and lend na­tional own­er­ship to such a scheme.

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