Plight of the de­tained sol­diers

Lesotho Times - - Opinion -

IN late April of last year, sus­pi­cious ac­tiv­i­ties at the Cor­rec­tional Fa­cil­ity be­came man­i­fest fol­low­ing the large scale re­lease of pris­on­ers un­der some­what un­ex­plained cir­cum­stances. It later be­came ev­i­dent that the move was noth­ing but an in­sti­tu­tion­alised en­deav­our on the part of the gov­ern­ment to pave the way for the large scale ar­rest of mem­bers of the Le­sotho De­fence Force (LDF).

No less than 50 sol­diers were first ar­rested and taken to the no­to­ri­ous Setib­ing mil­i­tary base where they were sub­jected to the hor­ren­dous or­deal of tor­ture. The en­tire or­deal of tor­ture was in­sti­tu­tion­ally sanc­tioned and it re­mains to be seen whether this hor­ren­dous or­deal of tor­ture of mem­bers of the LDF will ever be ad­dressed and the per­pe­tra­tors thereof will ever be brought to book.

Tor­ture is an in­ter­na­tional crime and Prime Min­is­ter Pakalitha Mo­sisili should oth­er­wise be re­minded that his omis­sion to de­ci­sively deal with this is­sue (among the many other obli­ga­tions that he has ill-ad­vis­edly de­cided to shun and per­haps over­look) that was per­pe­trated on the sol­diers could oth­er­wise at­tract crim­i­nal li­a­bil­ity of not only the rel­e­vant Min­is­ter of De­fence and LDF com­man­der, but also him­self. A per­ti­nent ex­am­ple is that of for­mer Chilean leader Au­gusto Pinochet, who at the most frag­ile age of 90 had to face the mu­sic for sanc­tion­ing tor­ture un­der his op­pres­sive gov­ern­ment.

This is clearly said in gen­uine en­thu­si­asm and the tony in­tel­lec­tu­als would surely agree with my view that mod­ern in­ter­na­tional law ju­rispru­dence is clearly against a gov­ern­ment that utilises state ap­pa­ra­tus to in­flict harm on the cit­i­zens and the agents of the state ir­re­spec­tive of their mil­i­tary sta­tus.

It be­came a live spell of sor­did mo­ments to the loved ones of the ar­rested sol­diers when they pa­raded the palace of jus­tice un­der the guard of heav­ily armed mem­bers of the spe­cial forces of the LDF cov­ered in bal­a­clavas lead­ing men who were ev­i­dently moan­ing with phys­i­cal pain.

The habeas cor­pus ap­pli­ca­tions flocked the High Court of Le­sotho and in­vari­ably, de­ci­sions of the court con­cluded that there was no ab­duc­tion but that the “ar­rest” of the sol­diers was a le­git­i­mate move sanc­tioned un­der the law.

The High Court made no ju­di­cial pro­nounce­ment over the is­sue of self-ev­i­dent tor­ture that was per­pe­trated on the men, some of whom are still lan­guish­ing in jail as we speak. In one iso­lated case, the learned judge made a re­mark in hind­sight to the ef­fect that the most pru­dent ap­proach to ex­plore is that of su­ing for dam­ages in civil courts.

It has since be­come the trend in this small en­clave coun­try for the LDF to project hor­ren­dous tor­ture on its mem­bers and for the state to bear the brunt through tax­pay­ers’ money when the per­pe­tra­tors are hav­ing the last laugh on the other end.

The trend of in­sti­tu­tion­alised tor­ture can be traced to as far back as 2007 when the cur­rent com­man­der of the LDF was then iron­i­cally the di­rec­tor of mil­i­tary in­tel­li­gence. The most sub­stan­tial amount of money that was ever awarded a mem­ber of the LDF by the Court of Ap­peal is M150 to a man whose gen­i­tals were tor­tured lead­ing to fer­til­ity com­pli­ca­tions — the most grue­some ex­pe­ri­ence that any adult can en­dure un­der the sun.

None of the as­sailants are be­hind bars ei­ther in the max­i­mum se­cu­rity fa­cil­ity or any other mil­i­tary de­ten­tion fa­cil­ity. Those who are cur­rently in de­ten­tion are the rem­nants of the in­sti­tu­tion of the LDF that is be­ing used and ma­nip­u­lated by politi­cians at the helm of power to en­trench and pro­tect them­selves. This re­la­tion­ship is based on shaky foun­da­tions of in­jus­tice and it is most un­likely to en­dure on ac­count of be­ing premised on in­jus­tice it­self.

Sus­pects of the 30 Au­gust 2014 at­tacks are still roam­ing free and per­haps dom­i­nat­ing the in­sti­tu­tion of the LDF and they are backed by a gov­ern­ment that has no real or gen­uine de­sire to im­ple­ment the rec­om­men­da­tions of SADC as a pow­er­ful and in­flu­en­tial re­gional body.

The real pur­pose of nar­rat­ing this his­tory is to ex­em­plify the no­tion that state­sanc­tioned tor­ture un­der Prime Min­is­ter Mo­sisili is and has al­ways been an ac­cepted norm and it is al­ways busi­ness as usual. The sol­diers who are cur­rently in prison are noth­ing but a reflection of a coun­try that has a rich his­tory of op­pres­sive and un­law­ful over­tures of an in­sti­tu­tion whose value in a coun­try to­tally sur­rounded by a pow­er­ful African coun­try with an army more than 10 times the size of no more than our 5 000-man army with the most ad­vanced and so­phis­ti­cated weaponry and ex­po­sure on mil­i­tary af­fairs is left to doubt.

The in­sti­tu­tion of the LDF was awarded a sub­stan­tial in­crease in the re­cent bud­get al­lo­ca­tion against the daunt­ing needs of a coun­try that is marred with high statis­tics of un­em­ploy­ment and de­clin­ing stan­dards of health fa­cil­i­ties and ed­u­ca­tion.

The plight of Le­sotho’s 16 de­tained sol­diers has to be eval­u­ated against the back­ground of the al­ready nar­rated back­ground. The re­al­ity is that these men are con­sulted by their lawyers in the full glare of the Spe­cial Forces’ agents out­side the precincts of the Max­i­mum prison fa­cil­ity, di­rectly de­feat­ing the sacro­sanct spirit and value be­hind the le­gal pro­fes­sional priv­i­lege.

They meet their vis­it­ing rel­a­tives un­der heavy guard with both of their feet man­a­cled and they are clearly privy to the pri­vate con­ver­sa­tions be­tween these men and their wives and or chil­dren. Any ac­tiv­ity thereof is metic­u­lously cen­sored.

Not­with­stand­ing the sol­diers’ prison de­ten­tion rules these men are de­prived of ba­sic recre­ational tools that must be ac­corded to them in terms of the law like ra­dios as pro­vided for un­der the rel­e­vant statute. They read news­pa­pers long af­ter their pub­li­ca­tion and un­der the terms pre­scribed by their gaol­ers.

They con­sis­tently en­dure the hu­mil­i­a­tion from the gaol­ers who re­mind them of the punishment of their be­trayal for be­ing aligned to the All Ba­sotho Con­ven­tion — in­sti­tu­tional po­lit­i­cal big­otry has since im­mersed it­self al­most in­vari­ably in ev­ery sphere of life in Le­sotho’s pub­lic pol­icy en­vi­ron­ment and the same trend has evenly im­mersed it­self in the ranks of the de­fence forces com­pletely over­look­ing the fact that these men have chil­dren and wives and they are bana ba Ba­sotho whose chil­dren be­gan wit­ness­ing this or­deal per­pe­trated on their loved ones in the very court room in habeas cor­pus ap­pli­ca­tions when they were ev­i­dently phys­i­cally wounded at the hands of the in­sti­tu­tion they worked for.

It would still re­main grossly in­hu­mane if the sor­did acts of tor­ture were per­pe­trated on congress loy­al­ists. All the ef­forts of the de­tained sol­diers’ lawyers have been dis­missed in courts of law and what is even worse is the fact that the state has al­lo­cated re­sources for the ex­clu­sive pur­pose of en­gag­ing ex­pa­tri­ate le­gal rep­re­sen­ta­tives who are paid at the state’s ex­pense but they have been de­prived of any le­gal aid and or pro deo fa­cil­i­ties pro­vided by the state for their le­gal rep­re­sen­ta­tion.

It has been sug­gested in some corners that the le­gal team of the de­tained sol­diers is rep­re­sented by op­po­si­tion lawyers — a poignant com­bi­na­tion of naivety and de­lib­er­ate mis­in­for­ma­tion and what is even worse is the fact that cer­tain sec­tions of the le­gal com­mu­nity har­bour this view as well.

If pro­fes­sion­als and/or or­di­nary mem­bers of the pub­lic have the propen­sity to brand each other by virtue of as­so­ci­a­tions, it ef­fec­tively means that for ev­ery con­victed crim­i­nal that a de­fence lawyer rep­re­sents, a lawyer ef­fec­tively be­comes a mur­derer him­self or her­self.

Is this sug­ges­tive that lawyers rep­re­sent­ing the gov­ern­ment are evenly congress loy­al­ists? Some of us made an in­formed de­ci­sion to ven­ture into in­sti­tu­tional pol­i­tics in order to make a con­tri­bu­tion as par­tic­i­pants in the pub­lic pol­icy en­vi­ron­ment in this trou­bled King­dom and there is no crime in this ven­ture.

Is this sug­ges­tive that Dr Monya­mane or Dr Phooko are any less of pro­fes­sional doc­tors when they ven­tured into in­sti­tu­tional pol­i­tics? Nel­son Man­dela and Ge­orge Bi­zos are live ex­am­ples of politi­cians-cum lawyers. We need to move be­yond petty po­lit­i­cal big­otry and en­gage on pub­lic is­sues in­tel­lec­tu­ally.

The pro­posal that prac­tise of the law is an ex­clu­sive pro­fes­sional en­deav­our un­re­lated to in­sti­tu­tional pol­i­tics is tan­ta­mount to draw­ing a dis­tinc­tion be­tween a but­ter­fly and a cater­pil­lar in­sect. We are not merely bi­o­log­i­cal spec­i­mens but we are also po­lit­i­cal spec­i­mens ir­re­spec­tive of our pro­fes­sional vo­ca­tions. I there­fore chal­lenge any pro­posed sug­ges­tion that lawyers cum politi­cians com­pro­mise their pro­fes­sional sta­tuses.

The Min­is­ter of De­fence in a ra­dio in­ter­view gave mis­lead­ing in­for­ma­tion to the ef­fect that the lawyers are de­lib­er­ately pro­cras­ti­nat­ing the mat­ter as a cal­cu­lated move to gen­er­ate fees but this is said against the back­ground of the state that fi­nanced the lawyers who rep­re­sent the gov­ern­ment against the sol­diers both in the High Court and Ap­peal Court, who had to fend for them­selves from as far back as the com­mis­sion hear­ings to the stage when court­mar­tial pro­ceed­ings com­menced.

The speed and haste with which the gov­ern­ment wants to pros­e­cute the court-mar­tial pro­ceed­ings weighs in heav­ily against the poor sol­diers who have to bear even the med­i­cal costs whilst in de­ten­tion con­trary to the de­ten­tion rules which places the med­i­cal costs’ bur­den on the state or LDF as it were.

The Min­is­ter of De­fence is most likely to be em­bar­rassed upon un­rav­el­ling the fact that the sub­stan­tial por­tion of the ser­vices ren­dered by the lawyers were next to pro bono if not pal­try in pro­fes­sional stan­dards when com­pared to those who are paid rates which cu­mu­la­tively amount to mil­lions at the state’s ex­pense. While the min­is­ter may be po­etic and as­sert that “jus­tice de­layed by lawyers is jus­tice de­nied” he needs to weigh that proposi- tion against a fa­mous para­dox to the ef­fect that “jus­tice hur­ried by mer­ce­nary lawyers and state in­sti­tu­tions is jus­tice buried”.

From as far back as the early 2000s, I com­plained about the en­gage­ment of ex­pa­tri­ate “mer­ce­nary lawyers” and those who care to read law re­ports will ob­serve the case re­ported in page 203 of Adv. Kele­bone Maope K.C’S 2000-2004 Le­sotho Ap­peal Cases.

The en­gage­ment of for­eign le­gal prac­ti­tion­ers to pros­e­cute or to be in­volved in civil cases in which pub­lic in­sti­tu­tions are hauled be­fore courts of law has raised con­cerns in some quar­ters of the le­gal pro­fes­sion mainly be­cause the role of the salaried mem­bers of the pub­lic bar is un­der­mined at a grossly un­con­scionable fee rate at a huge cost to the tax­pay­ers.

Since in­de­pen­dence, Le­sotho’s le­gal fra­ter­nity has al­ways been in­volved in the peren­nial im­port of le­gal ser­vices. We have al­ways been an eco­nomic colony of South Africa even in un­war­ranted cir­cum­stances. It de­feats the ob­jec­tive of Le­sotho groom­ing and cul­ti­vat­ing its own le­gal in­tel­li­gentsia. There has never been a gen­uine de­sire on the part of pol­icy mak­ers to pro­mote, pro­tect and em­power the mem­bers of the lo­cal bar and side-bar those who are ‘em­pow­ered’ are aligned to for­mal po­lit­i­cal in­sti­tu­tions in power.

It is both em­bar­rass­ing and re­gret­table for a cabi­net min­is­ter to seek to por­tray an im­age that lawyers for the de­tained sol­diers are only af­ter money and hence have no real or gen­uine de­sire to help the de­tained sol­diers when the pros­e­cu­tor at the court-mar­tial and some lawyers who were en­gaged at the com­mis­sion of in­quiry are paid ex­or­bi­tant amounts of money which far ex­ceed those of the lawyers for the de­tained per­sons and of which the bill is footed by the tax­pay­ers. Now! Who is af­ter money, and whose money for that mat­ter?

In yet an­other iso­lated in­stance, the le­gal pro­fes­sion com­plained evenly about the en­gage­ment of what later evolved in col­lo­qui­al­ism to be branded as “mer­ce­nary judges” — judges im­ported from the Re­pub­lic of South Africa with an ex­clu­sive man­date of de­liv­er­ing favourable judge­ments to the gov­ern­ment of the day.

This is said mainly be­cause there are few if not pe­cu­liar in­stances when for­eign judges ever ren­dered ver­dicts against gov­ern­ments of the day. It will fur­ther be re­called that some­time in 2009 when a for­eign judge was im­ported to try a Catholic clergy and ed­i­tor of a news­pa­per in the coun­try, a res­o­lu­tion was passed by the Law So­ci­ety of Le­sotho to boy­cott this judge’s en­gage­ment.

Those who care to read will evenly re­al­ize an­other re­ported judge­ment on page 572 of Adv. Kele­bone Maope K.C’S 2000-2004 Le­sotho Ap­peal Cases in which an ap­point­ment of the same judge was evenly chal­lenged on sim­i­lar grounds.

With al­most half a cen­tury as a le­gal prac­ti­tioner, I have con­sis­tently shared a view with young lawyers to the ef­fect that lit­i­ga­tion is not about win­ning or los­ing — the suc­cess in lit­i­ga­tion can­not lie in the nar­ra­tives of suc­cess and/or fail­ure but in the con­text of mould­ing the wheel of jus­tice. It is re­gret­table, if not painful, to re­alise that this coun­try is go­ing through a painful phase of op­pres­sive lead­er­ship sanc­tioned by the mil­i­tary. Those with gen­uine pa­tri­o­tism should have grave mis­giv­ings about this trend.

The seven-party coali­tion has al­ready run the course of its first year in power but there is a high and open-ended un­cer­tainty sur­round­ing its longevity. The Deputy Prime Min­is­ter still has a cor­rup­tion case be­hind his back and the Min­is­ter of Po­lice still has a well-doc­u­mented crim­i­nal trial which is evenly linked to cor­rup­tion and which was sus­pi­ciously post­poned to a date in an un­rea­son­ably dis­tant fu­ture.

There is yet an­other boil­ing ten­sion in the Prime Min­is­ter’s po­lit­i­cal party where there are two fac­tions aligned to him and his deputy leader. The 2020 elec­tions, if ever they shall be re­al­ized in that year — shall come with many un­cer­tain­ties and per­haps harsh re­al­i­ties of many high-rank­ing of­fi­cers — but the most glar­ing re­al­ity is that Prime Min­is­ter Mo­sisili has a lot to worry about.

But the big­gest chal­lenge or per­haps stone in his shoe lies with his in­de­ci­sive­ness over the re­moval of the in­cum­bent com­man­der of the armed forces in this coun­try and all the atroc­i­ties car­ried out un­der his watch — ei­ther by com­mis­sion or omis­sion. Jus­tice al­ways has a strange way of pre­vail­ing at the end of the day and some­times even years or decades…

Sus­pects of the 30 Au­gust 2014 at­tacks are still roam­ing free and per­haps dom­i­nat­ing the in­sti­tu­tion of the LDF and they are backed by a gov­ern­ment that has no real or gen­uine de­sire to im­ple­ment the rec­om­men­da­tions of SADC as a pow­er­ful and in­flu­en­tial re­gional body.

— File pic

some of the de­tained sol­diers’ fam­ily mem­bers protest­ing their im­pris­on­ment.

Adv Haae Phoofolo K.C.

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