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The day SADC declared war on Impunity

 

Professor Mafa M Sejanamane

 “..since you know as well as we do that right, as the world goes, is only in question between equals in power, while the strong do what they can and the weak suffer what they must.” Thucydides, History of the Peloponnesian War, 400 B.C.

Overview

LESOTHO’S history is littered with many false starts, and people at times have mistaken mirages for reality whereby superficial actions have been labelled reforms. The crisis which has reduced this country to an amusement spectacle was prolonged from August 2014 to the present. It was in that fateful month that the Lesotho Defence Force made an undignified dash for power. When they failed to succeed, SADC through its facilitation presented a mirage of “Political Accords” and “Security Accords” rather than addressing the reality of a security crisis. An opportunity was thus missed to restructure and depoliticise the army once and for all. Calling and holding elections was from the beginning one of those mirages rather than a solution. It mistakenly misdiagnosed a security challenge where the army attempted to overthrow an elected government; attacked, killed and injured policemen; protected those of its own who were suspected of serious crimes including murder, as a political crisis. No wonder that less than three months after the coming into office of the new government, the backlash against all those who were seen to have played a part in frustrating the staging of a successful coup were hounded out and former LDF commander Lt-Gen Maaparankoe Mahao was killed.

SADC’s latest intervention therefore, came with the wisdom gained from experience, and also freshened up by the initial investigation of its fact finding mission made up of political and security personnel who had not been involved in earlier episodes. The Extraordinary Double Troika Summit in Pretoria in July 2015 made it clear that accountability for the crimes committed in Lesotho in recent times must be taken. By setting up an unprecedented Commission of Inquiry under Justice Phumaphi SADC was drawing a line in the sand on unaccountability. This was reinforced by the Gaborone Summit of 2014 which outrightly rejected the government of Lesotho’s attempt to change the Terms of Reference (ToRs) from those meant to ensure accountability, to those meant to probe political actions by the previous government.

In this article, I argue that the recent Double Troika Summit of the Heads of State and Government of the SADC held in Gaborone in January 2016, has continued what it started in Pretoria in 2014 and has broken ground as it focused on ensuring good governance and accountability as opposed to those Summits which were dominated by the individual interests of the Heads of State and Government. This was demonstrated by the decisive manner the Summit dealt with the artificial obstacles put forward by the Lesotho government to block or at least delay the publication of the Phumaphi Report and attendant accountability actions in it.

Contestations about the SADC Commission

From the beginning, the Phumaphi Commission was a contested issue. Internally, there was no unanimity within the government about it. Later, the internal contestations would lead to an unwinnable confrontation with SADC. In all the issues discussed below, the central one is the apparent disunity of the government on how to handle the Commission now that SADC had established it. This was demonstrated by the following among others:

  • First, when the Commission started its work, it was confronted by unreasonable demands by Major Bulane Sechele, a recently promoted army officer, who demanded and failed to persuade the Commission to abandon all its investigations about the alleged mutiny; demanded that all soldiers appearing before the Commission not appear in their individual capacity but must be there in their official army positions. This was in direct opposition to a government gazette issued by the Prime Minister.
  • Second, like most of those in the army and the government Major Sechele refused to acknowledge that army commander Lieutenant-General Tlali had ever been legitimately dismissed, and that Lt-Gen Mahao was ever legitimately appointed commander of the LDF in spite of the government gazette issued by His Majesty in terms of the law.
  • Third, Prime Minister Pakalitha Mosisili, to his credit, grudgingly testified that the former was removed from office and the latter was appointed legitimately.

More importantly, a new conversation had also begun within the government of what would happen to the report of the Commission. Prime Minister Mosisili had earlier told the media that he would implement all the recommendations of the Commission. Dramatically, Police Minister Monyane Moleleki in a press conference convened by the premier, argued that the recommendations of the Commission would not be binding on the government.

As the Commission’s investigations continued, the internal cracks within the government became apparent as it became clear that the Phumaphi Commission was not going to be a rubber stamp of government, two related attempts were made to try to scupper its operations. Government began to launch a concerted campaign that evidence gathered in South Africa should be discarded because the commission’s work is confined to Lesotho.

Using the same arguments which were used by the government lawyers and also the Prime Minister in several political rallies, Lieutenant-Colonel Tefo Hashatsi, one of the LDF members who was summoned by the Commission, launched an application in the High Court seeking to quash the Commission. The first respondent was the Prime Minister who unsurprisingly did not file any opposing papers in the High Court. It was apparent for all to see that Lt-Col Hashatsi was the public face of the case, but the Lesotho government was the real force behind it. This case was now used as a mechanism to refuse to have the Commission’s work to be brought to finality since there was a pending case in the courts in Lesotho. The critical question, however, was that there was and there is no court order preventing the Commission to do its work.

At another level, it is important to show that the SADC Commission itself was sued as a second respondent in the Hashatsi case. The matter was subject to a sharp rebuke to Lesotho’s Foreign Minister Tlohang Sekhamane by the Executive Secretary of SADC in a letter dated 21/10/2015 where among other things she reminded the Minister that SADC and its officers are immune from any legal process in member countries; and also that in terms of Article 10(9) of the SADC Treaty the decisions of the Summit are binding.

It must be remembered that the issues which were under investigation were about the murder of the former army commander and also about the alleged mutiny which led to the detention and torture of over 20 soldiers. The issues in contention about the SADC Commission were therefore about accountability and the rule of law. If there is resistance to the Commission, it was one way of attempting to protect people who have committed serious crimes.

Governance Rule of Law and Accountability Issues

Attempts to delay the publication of the SADC Commission Report were vigorously championed by the government. From the beginning, the issue of

Lt-Col Hashatsi’s case was put at the forefront. This, however, as already pointed out, was not without any merit since there was not even a Court Order which could have been used as an excuse. But more importantly, this resistance was ignoring the fact that in the modern phase of international diplomacy, accountability, governance and rule of law are at the pinnacle of international relations. A government which tramples on human rights, and does not follow new codes of good governance, condemns itself to isolation.

In Lesotho’s case, a country which is begging for food assistance, being isolated is the last thing that it needs. Good governance was specifically raised by the United States Ambassador to Lesotho Matthew Harrington who told journalists in a roundtable discussion in 2015 that accountability is a critical issue in the new era of international relations. Specifically he pointed out. “…There should be accountability regarding the 30 August 2014 incidents as certain facts are not in dispute. Lt-Gen Kamoli was dismissed and there was a raid on police stations. During the raid, a police officer died and there has not been any arrest.” 

Similarly, in a letter to the Lesotho Finance Minister ‘Mamphono Khaketla, Beth Tritter Vice President for Policy and Evaluation of the Millennium Challenge Corporation (MCC) told Ms Khaketla that MCC can only support states which are accountable.

“…As similarly expressed in the US Department of State’s statement on 27 May 2015, the MCC remains concerned with the lack of accountability for the August 2014 political unrest and violence between the military and police, and calls for clear enforcement of the rule of law and due process within the defence forces and in the overall security environment.”

Finally, it must be clear that Lesotho is bound by the good governance codes adopted by SADC, the African Union and other institutions. It was, therefore, very unwise for the government to attempt to use the Hashatsi case to protect those people who have cases to answer. The Phumaphi Commission Report therefore is the starting point in ensuring that accountability and rule of law are elevated to the highest levels of the interaction of Lesotho and other states. 

Success of SADC Diplomacy

I have already indicated above that good governance and accountability are now key in the relations of states. SADC sent a signal to Lesotho as early as October 2015 through a letter to Minister Sekhamane referred to above; through a Communique of the Double Troika in November 2015; the meeting of SADC Facilitator, Cyril Ramaphosa in November 2015 with both the Prime Minister and other Lesotho stakeholders. Mr Ramaphosa’s mission in November 2015 was significant in at least two ways.

  • He came to Lesotho with a team of legal experts who had been assembled to try to show the Lesotho government the futility of its argument on the Phumaphi Commission. It was in a way an attempt to use persuasion in a matter where SADC was unwilling to bend. The Prime Minister did not take the advice and continued to argue that the Hashatsi case must take precedence over the wishes of the Double Troika.
  • Unlike in his previous visit to Lesotho, Mr Ramaphosa met a wide range of stakeholders including the Mahao family and the wives of some of the incarcerated soldiers. Uncharacteristically, he spoke candidly about his discussions with the Prime Minister and also indicated his disappointment with the discussions. Mr Ramaphosa’s meetings with the Lesotho stakeholders broke ground because almost all told him that the Hashatsi case was a smokescreen to avoid accountability.

When Mr Ramaphosa wrote his report to the Double Troika, he had now been sufficiently briefed and knew that his attempts to coax the government had failed. SADC was now left with deciding how to ensure that its will would prevail.

Prime Minister Mosisili went to SADC knowing fully well that he would face the Head of States and Government who are unhappy about his actions and omissions. He made the situation even more untenable by arriving late for the Summit and continuing with his insistence that SADC Commission Report should not be published. All reports indicate that he had an uncomfortable meeting.

On its part, the Summit was firm in its stance. It has often been argued that for diplomacy to succeed two principles must exist:

  1. Objective and demands to the other party must be clear and unambiguous;
  2. Demands must be backed by either incentives or sanctions. Incentives must be substantial while sanctions must be credible.

SADC seems to have followed these classic principles. The government was made aware of the demands that the recommendations of the Phumaphi Report be implemented as they are. Secondly, the threat of suspension of Lesotho from SADC was raised and adopted unless the demands were acceded to.

In an unprecedented interview to the media, South African President Jacob Zuma confirmed that Lesotho would be provisionally suspended until a SADC Summit was held to consider the recommendation on this of the Double Troika Summit. In a similar manner, President Felipe Nyusi of Mozambique reiterated the same point to his country’s media.

The immediate consequences of the suspension of Lesotho would have been extremely serious. First, it would lead to lack of confidence and the attendant suspension by most multilateral institutions which also subscribe to good governance codes. It must be clear that most institutions would take their cue from SADC. Institutions like the AU, the World Bank, EU and the US would not associate with a state that has been suspended by SADC because of bad governance.

In addition, it must be clear that the suspension would have had an effect on bilateral relations with some of the states in the region and beyond. It would not have been out of order to expect that under those circumstances, countries like our immediate neighbour, South Africa, could have been expected to take certain actions against Lesotho. Let’s remember that President Zuma had made it clear that the recommendations of the Commission would be implemented on behalf of Lesotho if it does not want implement them.

It is in this environment that Prime Minister Mosisili capitulated. Overnight, and after discussions with President Khama, he accepted the recommendations of the Commission. The suspension part of the decision thus fell away temporarily. The Communique however spells out clearly that SADC has accepted and endorsed the report and tasks the Lesotho government “…to provide feedback to the Chair of the Organ on Politics, Defence and Security Cooperation, and to publish the Report within 14 days (by 01 February 2016)”. This is another demand which is clear and unambiguous. Thus, the first of February is D-day and failure to comply would lead to serious consequences. Unfortunately, in those circumstances Basotho as a whole would suffer.

Conclusion

Following the SADC Summit in Gaborone, the way relations between states, particularly small states like Lesotho govern has changed. They can no longer hide behind sovereignty to practice bad governance. For Prime Minister Mosisili, the Gaborone experience must have told him that the old ways of doing things his way have changed for good. SADC has now declared a closure of that chapter in Southern Africa. It is important to fully understand Thucydides pronouncements that in international relations, the weak do not have luxury to do what they want.

In this unwinnable struggle Prime Minister Mosisili knew that due to bad timing, he was due to meet MCC the following day who certainly would have made the same demands about the Phumaphi Report.

 

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