Amnesty bill lacks in­clu­siv­ity - An­a­lysts

Lesotho Times - - News - Billy Ntaote

A BILL to grant mem­bers of the se­cu­rity sec­tor a blan­ket amnesty for of­fences com­mit­ted be­tween Jan­uary 2007 and De­cem­ber 2015 is un­likely to bring the peace and sta­bil­ity en­vi­sioned by the govern­ment with­out en­gag­ing stake­hold­ers, an­a­lysts have said.

Ac­cord­ing to the an­a­lysts, a uni­lat­eral ap­proach would not bring about the rec­on­cil­i­a­tion needed to re­solve Le­sotho’s po­lit­i­cal chal­lenges, since it would be per­ceived as just a way of pro­tect­ing the govern­ment’s sup­port­ers from pos­si­ble prose­cu­tion.

The Amnesty Bill, 2016, which is still be­ing drafted by the govern­ment, is ex­pected to be tabled in the Na­tional Assem­bly af­ter it re­con­venes on 11 Novem­ber this year.

If tabled in the Na­tional Assem­bly in its cur­rent form by De­fence and Na­tional Se­cu­rity Min­is­ter Tšeliso Mokhosi and passed into law by both the lower house and the Se­nate, the bill would see mem­bers of Le­sotho De­fence Force (LDF), Le­sotho Mounted Police, Na­tional Se­cu­rity Ser­vice, Le­sotho Cor­rec­tional Ser­vice, govern­ment of­fi­cials and “any other per­son” be­ing granted amnesty for of­fences com­mit­ted be­tween Jan­uary 2007 and De­cem­ber 2015.

The amnesty would ex­tend to mem­bers of the LDF whom the South­ern African De­vel­op­ment Com­mu­nity (SADC) Com­mis­sion of In­quiry into Le­sotho’s in­sta­bil­ity had rec­om­mended should face prose­cu­tion.

The 10-mem­ber SADC In­quiry led by Botswana’s Jus­tice Mpa­phi Phumaphi was con­vened af­ter the killing for­mer army com­man­der Maa­parankoe Ma­hao. The for­mer LDF chief was al­legedly re­sist­ing ar­rest for sus­pected mutiny when he was killed by his col­leagues out­side his Mokema farm on 25 June 2015. How­ever, the Ma­hao fam­ily and SADC in­quiry have dis­puted that claim.

Af­ter the killing, Prime Min­is­ter Pakalitha Mo­sisili asked SADC to help es­tab­lish the cir­cum­stances sur­round­ing the tragedy with the in­quiry car­ry­ing out its in­ves­ti­ga­tions be­tween 31 Au­gust and 23 Oc­to­ber 2015.

It made a num­ber of rec­om­men­da­tions, in­clud­ing the sus­pen­sion of LDF of­fi­cers im­pli­cated in cases of mur­der, at­tempted mur­der and trea­son while in­ves­ti­ga­tions into the al­le­ga­tions pro­ceeded in line with in­ter­na­tional best prac­tice.

The in­quiry also rec­om­mended an amnesty for the 23 sol­diers fac­ing mutiny charges be­fore the Court Mar­tial. The sol­diers were ar­rested be­tween May and June 2015 for al­legedly plot­ting to vi­o­lently re­move the LDF com­mand. Seven of the sol­diers have since been re­leased from Maseru Max­i­mum Se­cu­rity Pri­son and placed un­der open ar­rest, which is a form of bail in the mil­i­tary. The other 16 re­main in de­ten­tion.

Among the of­fences for which amnesty would be granted in­clude high trea­son, sedi­tion, sub­ver­sion, mur­der, mutiny, other acts or omis­sions of vi­o­lence against per­sons, ma­li­cious dam­age to prop­erty, kid­nap­ping, de­ser­tion, in­cite­ment to com­mit a crime and con­tra­ven­tion of the In­ter­nal Se­cu­rity Act. The draft law fur­ther pro­vides that if found nec­es­sary and “sat­is­fac­tory”, the Min­is­ter of Fi­nance may make nec­es­sary com­pen­sa­tion to ag­grieved per­sons.

In the case of the de­tained sol­diers and mem­bers of dis­ci­plined ser­vices, the bill states they would be re­leased upon “com­ing into oper­a­tion of this Act” and re­quired to hand over “what­ever mil­i­tary prop­erty may be in their pos­ses­sion” be­fore be­ing re­tired and given their ter­mi­nal ben­e­fits. This also ap­plies to mem­bers of the LDF and dis­ci­plined ser­vices ex­iled in South Africa.

How­ever, for serv­ing mem­bers of the LDF and dis­ci­plined ser­vices fac­ing these charges, they would not only be granted amnesty but con­tinue with their em­ploy­ment.

In its “State­ment of Ob­jects and Rea­sons of the Amnesty Act, 2016” the bill states it is meant to bring “last­ing peace and tran­quil­lity” in the coun­try and to be a “tool for rec­on­cil­i­a­tion and re­con­struc­tion”.

It is also meant to en­able mem­bers of the dis­ci­plined force and ser­vices to “un­der­take their in­sti­tu­tions’utions’ con­sti­tu­tional man­date with­out any y fear of per­se­cu­tion and prose­cu­tion”.

Ac­cord­ing to Le­sotho Coun­cil of Non-gov­ern­men­tal Or­gan­i­sa­tions (LCN) Ex­ec­u­tive Di­rec­tor Se­abataa­bata Mot­samai, while the Amnesty Bill, 2016016 was a “good ges­ture or no­tion” the uni­lat­er­al­ist ilat­er­al­ist ap­proach by the govern­ment to such a del­i­cate process “would ren­der it un­ac­cept­able”.ac­cept­able”.

“The premise mise of the bill is cer­tainly a good ges­ture e or no­tion. In­deed Le­sotho is in dire need foror rec­on­cil­i­a­tion to bring about na­tional heal­ing,” al­ing,” he says.

“How­ever, , the govern­ment needs to re­con­sider its ap­proach be­cause it risks be­ing per­ceived as only try­ing to ad­vance nce its in­ter­ests to the detri­ment nt of other groups af­fected by these is­sues.”

Mr Mot­samai mai stresses the need for di­a­logue, ia­logue, say­ing the bill should uld be the out­come of a con­sul­ta­tive process to en­sure the views of all ll stake­hold­ers are in­cor­po­rated.

“Di­a­logue is key, be­cause use the vic­tims ms and per­pe­tra­tors should all l be treated d equally inn the bill with­hout any of the two groups be­ing short-changed,” the LCN di­rec­tor notes.

“If the army in­tends to re­tire the de­tained and ex­iled sol­diers, the only way to level the play­ing field is to re­tire all those sol­diers im­pli­cated by the SADC Com­mis­sion of In­quiry’s re­port.”

He adds: “Govern­ment, as an in­ter­ested party, should re­alise that a uni­lat­eral im­po­si­tion of such a law would not bring a durable and sus­tain­able solution to the po­lit­i­cal and se­cu­rity cri­sis fac­ing this coun­try.

“In its cur­rent for­mat, the law would fail in its stated ob­jec­tive of heal­ing the wounds of the peo­ple af­fected by the se­cu­rity cri­sis. Ul­ti­mately, in­clu­siv­ity mat­ters.”

Echo­ing the sen­ti­ment, Trans­for­ma­tion Re­source Cen­tre’s Pro­grammes Man­ager Lenka Thamae, says pub­lic par­tic­i­pa­tion is a key com­po­nent in coin­ing re­form poli­cies.

“We have al­ways ad­vo­cated for pub­lic par­tic­i­pa­tion as a core value of the re­form process. The ques­tion that begs a re­sponse from the govern­ment is whether the process of com­ing up with this bill was par­tic­i­pa­tory or not,” says Mr Thamae.

“Our democ­racy is un­der siege and now is the time to en­gage each other and not to just dic­tate as the draft­ing of this bill amounts to.

He also notes that while the govern­ment was within its rights to pro­mul­gate laws, they should con­sult stake­hold­ers as a ges­ture of good­will.

“The issue is not about the right to make laws, but in­clud­ing oth­ers would be a ges­ture of good will. If they are sin­cerely try­ing to build a foun­da­tion for peace and sta­bil­ity, they should con­sult oth­ers,” Mr Thamae says.

“So there is an ur­gent need for this issue to be dis­cussed openly. In its cur­rent form, and the man­ner it is be­ing for­mu­lated, this bill is un­ac­cept­able.”

De­scrib­ing the bill in its cur­rent form as “mis­chievous”, he says it pro­motes im­punity by the per­pe­tra­tors.

“We can’t ac­cept the blan­ket amnesty pro­posed by the bill. In fact, it is mis­chievous be­cause it pro­motes im­punity. It should be for­mu­lated in the open through di­a­logue,” says Mr Thamae.

“While the TRC ac­cepts the amnesty for sus­pected mu­ti­neers as rec­om­mended by the Phumaphi in­quiry, the law should take its course on crim­i­nal ac­tiv­i­ties per­pe­trated by some sol­diers. The amnesty should not be broad­ened to crim­i­nal ac­tions that in­clude hu­man rights vi­o­la­tions.”

Chip­ping in, At­tor­ney Tu­misang Mosotho says the pro­posed amnesty law is not a new phe­nom­e­non in the his­tory of Le­sotho.

In 1986, he says, the Gen­eral Amnesty Or­der was passed for the pur­pose of grant­ing amnesty to per­pe­tra­tors of po­lit­i­cal crimes com­mit­ted from 1970 to 1986.

“That law dealt specif­i­cally with of­fenses of a po­lit­i­cal na­ture. It was for peo­ple who were sen­tenced and oth­ers who were li­able for prose­cu­tion. The amnesty covered cases of high trea­son, sedi­tion and mutiny,” says At­tor­ney Mosotho.

“The law still had an in­dem­nity clause stat­ing that no civil or crim­i­nal charges could be brought against the state.”

He also notes that a sim­i­lar law was passed in 1987 by the mil­i­tary regime to pro­tect sol­diers for acts com­mit­ted from 15 Jan­uary 1986 to 15 Jan­uary 1988 called the In­dem­nity Or­der (1987).

“It was in­tended to pro­tect against civil or crim­i­nal prose­cu­tion and it was meant for sol­diers, police, govern­ment of­fi­cials and the govern­ment. This was for acts com­mit­ted while at work within the scope of their em­ploy­ment, de­fence of the King­dom and sup­pres­sion of mutiny.”

At­tor­ney Mosotho says it is note­wor­thy that there was no con­sti­tu­tion at the time and the laws could not be tested against the supreme law.

He says in 1996, Le­sotho passed yet another amnesty law, known as the Par­dons Act (1996) that granted amnesty for of­fences com­mit­ted from 1 Novem­ber 1993 to 31 De­cem­ber 1995 and for peo­ple il­le­gally pos­sess­ing firearms and am­mu­ni­tion.

At­tor­ney Mosotho notes that the Par­dons Act (1996) was ef­fected af­ter the es­tab­lish­ment of a con­sti­tu­tional govern­ment in 1993.

“As a re­sult, the law didn’t stop crim­i­nal and civil pro­ceed­ings from tak­ing place be­fore the courts of law,” he says.

“The law re­lated to po­lit­i­cal crimes only. How­ever, the Amnesty Bill, 2016 seems to be in­tended to cover up and ab­solve peo­ple of crimes that were clear in­fringe­ments on fun­da­men­tal hu­man rights. It ap­pears to be meant to cover up mur­ders and other such se­ri­ous crimes.”

At­tor­ney Mosotho also takes issue with the “su­pe­rior treat­ment” given to serv­ing sol­diers com­pared to their de­tained and ex­iled coun­ter­parts.

“The bill shock­ingly pro­poses that the sol­diers in de­ten­tion and in ex­ile would be granted amnesty and re­tired. Grant­ing amnesty means you are turn­ing a blind eye to what hap­pened be­fore,” he says.

“But this sug­ges­tion that they be re­tired is il­log­i­cal. There is no ba­sis for the dis­crim­i­na­tion in the bill and its pro­pos­als are con­trary to the prin­ci­ples of an amnesty.

“If it is in the best in­ter­ests of the army to re­tire them, then all the sol­diers who would be af­fected by the amnesty law should be re­tired and not just a select few.”

At­tor­ney Mosotho fur­ther ar­gues the Amnesty Bill, 2016 would be un­con­sti­tu­tional in its cur­rent for­mat.

“It will not stand the con­sti­tu­tional test be­cause it un­jus­ti­fi­ably en­croaches on peo­ple’s con­sti­tu­tional rights,” he says.

“It would only amount to a tem­po­ral re­lief for those who have com­mit­ted crimes and it would be at­tacked by all sec­tors of so­ci­ety and even chal­lenged in court.”

LCN Ex­ec­u­tive Di­rec­tor Se­abata Mot­samai.

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