…as clock ticks towards release of Phumaphi report and Hashatsi ruling
Keiso Mohloboli
BASOTHO are on the edge once again as they await tomorrow’s release of the much-anticipated SADC report and Lieutenant-Colonel Tefo Hashatsi judgment.
Deputy Prime Minister Mothetjoa Metsing last weekend convinced the regional body not to enforce its 1 February 2016 deadline for the release of the report which, among other security-related issues, is expected to shed light on the killing of former army commander Maaparankoe Mahao by his colleagues on 25 June 2015.
A SADC Double Troika Summit held in Botswana on 18 January this year, had given the Lesotho government 14 days to make the report public. This was after Prime Minister Pakalitha Mosisili had initially refused to accept the document citing a High Court case in which Lesotho Defence Force (LDF) Special Forces Commander Lieutenant-Colonel Tefo Hashatsi is challenging the legitimacy of the commission.
But after Lesotho was threatened with suspension because of his refusal to receive the report, Dr Mosisili eventually took the document which SADC insisted had to be published before 1 February 2016.
However, Mr Metsing met with SADC Organ on Politics, Defence and Security Cooperation chairperson, President Filipe Jacinto Nyusi of Mozambique last weekend on the sidelines of the African Union summit in Ethiopia. The meeting, which was also attended by a representative of SADC chairperson, Botswana President Ian Khama, saw the leaders agree that the report would be tabled before parliament when it reconvenes tomorrow.
On the other hand, the High Court is also expected to make a ruling on Lt-Col Hashatsi’s application on Monday.
Both are among the country’s most topical issues and the fact that they are happening on the same day makes 8 February 2016 a special day in the history of Lesotho as both events have the potential to change the Kingdom’s destiny.
Meanwhile, opposition Members of Parliament (MPs) who have been boycotting the legislature since 23 June 2015, are going to temporarily suspend their protest tomorrow and attend the reopening of the National Assembly following its closure in December for the festive season.
But the legislators insist they would only be in the house for the tabling of the SADC report, and are going to walk out soon after its presentation.
The 55 MPs from the main opposition All Basotho Convention (ABC), Basotho National Party (BNP) and Reformed Congress of Lesotho (RCL), have vowed not to attend parliament until their leaders — former prime minister Thomas Thabane, Thesele ‘Maseribane and Keketso Rantšo respectively — safely return from South Africa where they sought refuge in May 2015 after claiming some LDF members were planning to kill them.
The LDF and government have since rubbished these claims and urged the leaders and their supporters who are also living in exile in the neighbouring country, to return home.
BNP spokesperson, Machesetsa Mofomobe, yesterday told the Sunday Express: “The opposition is going to parliament but we are also ready for anything because the government is not reliable. If the SADC report is tabled edited or is not presented before parliament on Monday, the opposition will continue with its mandate of showing Basotho the truth and present the report to the people in its original form because we have it.”
RCL Secretary-General ‘Mamolula Ntabe also confirmed opposition MPs would be going to parliament tomorrow but first meet today to “strategise”.
“We will go to parliament on Monday, but only for the report although we also doubt it will be tabled as claimed by the government,” Ms Ntabe said.
“The reason why we are sceptical about this is because Hashatsi’s ruling will be read at 11am in the High Court on Monday, and we know the case is about his challenge of the legitimacy of the SADC Commission which produced the very report we are hoping would be tabled in the legislature later in the day. We smell something fishy here. Something might happen between morning and after lunch to stop the report being tabled before parliament as expected. We might see a court order stopping the whole process if the judgement is in favour of Hashatsi.”
Background to SADC report
The SADC Commission of Inquiry report is expected to detail the circumstances surrounding the killing of Lt-Gen Mahao on 25 June 2015 outside his Mokema farm. Lt-Gen Mahao was killed during an army operation to arrest him for suspected mutiny. The military says Lt-Gen Mahao was resisting arrest when he was shot.
After the killing, Dr Mosisili requested SADC’s help in probing the tragic incident, resulting in a 10-member Commission of Inquiry led by Justice Mpaphi Phumaphi of Botswana.
The commission conducted hearings in Maseru and Thaba-Nchu in South Africa between 31 August and 23 October 2015. But Justice Phumaphi’s decision to hear evidence from exiled opposition leaders, their supporters and members of the LDF in Thaba-Nchu, saw government’s legal team refusing to attend the sessions in the Free State town. The lawyers argued the commission had breached terms of its establishment by hearing evidence in South Africa because it had been established by Lesotho laws.
Lt-Col Hashatsi’s application
In his urgent application filed on 18 October 2015, Lt-Col Hashatsi argued the “clear stance” taken by Justice Phumaphi against him violated his constitutional right to be presumed innocent until proven guilty by a competent court.
The LDF officer also noted that Justice Phumaphi appeared to have already concluded that he was responsible for Lt-Gen Mahao’s murder due to his line of questioning.
Because of the alleged bias, Lt-Col Hashatsi wanted the respondents — Dr Mosisili, Justice Phumaphi, the SADC Commission of Inquiry and Attorney General Tšokolo Makhethe — to give reasons why the inquiry should not be discontinued “for lack of impartiality”. He was not granted this prayer as the inquiry continued.
He further wanted the probe to be stopped because some of its members were not “legally commissioned”.
Lt-Col Hashatsi also wanted the respondents to explain to the court why proceedings should not be “reviewed and set aside as having been vitiated by an error of law that they did not have to be conducted according to the Public Inquiries Act except only to the extent of using the provisions for the compulsion of witnesses under that law; why proceedings should not be reviewed and set aside because of the participation of (SADC inquiry commissioner) Mr Waly and everyone else who was not appointed as a commissioner in terms of Legal Notice 75 of 2015.
Lt-Col Hashatsi further wanted the court to rule that the commission acted beyond its powers when it conducted hearings in Thaba-Nchu from 1-7 October 2015, where exiled opposition leaders and members of the army gave testimonies.
He also wanted the court to order the commission to surrender evidence it had since gathered about him.
Part of the notice of motion also called for the respondents to explain “why evidence and facts relating to him shall not be expunged from the record of the proceedings”.
Lt-Col Hashatsi further wanted the respondents to show cause why the commission should not be “restrained and interdicted” from making any findings in relation to him. He also wanted the commission stopped from summoning him again “pending the outcome of this application”. He was granted this prayer as he did not appear before the commission for the second time after being initially ordered to do so.
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