Tefo Tefo
Rights group Transformation Resource Centre (TRC) wants to be part of a case in which Special Forces Commander Lieutenant-Colonel Tefo Hashatsi is challenging the SADC Commission of Inquiry’s objectivity.
Lt-Col Hashatsi on 16 October 2015 filed an urgent application before the High Court seeking to block the inquiry.
The commission was established to probe the death of former Lesotho Defence Force (LDF) commander Maaparankoe Mahao on 25 June this year.
Lieutenant-General Mahao was shot dead outside his Mokema home by LDF members who had come to arrest him for suspected mutiny.
The shooting prompted Prime Minister Pakalitha Mosisili to invite SADC to help establish the circumstances surrounding the killing.
The regional bloc obliged by appointing Botswana judge, Justice Mpaphi Phumaphi, to lead a 10-member team of security and legal experts in probing the killing. However, the commission prematurely concluded its probe on 23 October instead of 9 November after the LDF refused to release 23 soldiers detained at Maseru Maximum Security Prison, to testify. The soldiers were arrested between May and June this year for allegedly being part of Lt-Gen Mahao’s foiled mutiny plot.
In his court action, Lt-Col Hashatsi claimed the commission was biased against him when he first appeared before it on 17 September.
The officer was particularly not happy with Justice Phumaphi whom he said made him appear the prime suspect in Lt-Gen Mahao’s killing.
Because of the alleged bias, Lt-Col Hashatsi wanted the respondents—Dr Mosisili, Justice Phumaphi, the commission and Attorney General Tšokolo Makhethe—to give reasons why the inquiry should not be discontinued.
Lt-Col Hashatsi further wanted the court to rule the commission acted beyond its powers when it conducted hearings in Thaba ‘Nchu, South Africa, from 1-7 October, where exiled opposition leaders and members of the army gave testimonies.
The Special Forces boss also wanted the court to order the commission to surrender to the Registrar of the High Court, evidence it had since gathered about him.
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, and also stopped from summoning him again “pending the outcome of this application”.
However, Justice Tšeliso Monaphathi only agreed to Lt-Col Hashatsi’s request not to appear before the commission again but allowed the hearings to continue.
The judge also said the other prayers in the application would be argued beginning 2 December 2015.
Lt-Gen Mahao’s wife, ‘Mamphanya, has since applied and been accepted, to be a respondent in Lt-Col Hashatsi’s application.
And on Friday, the TRC also applied to be part of the proceedings and the application would be argued in the High Court tomorrow.
In his affidavit, TRC Director Tšoeu Petlane, outlines why the organisation should be part of the proceedings.
Part of Mr Petlane’s affidavit reads: “The TRC has direct interest in these proceedings as it was one of the first members of civil society that recommended an independent Commission before such was considered by government and SADC, and also made submissions before the Inquiry on 21 September 2015.
“The TRC seeks to raise contentions which may be useful to the court and do not repeat any matter set forth in the arguments of the other parties.
“The findings of the commission are in the public interest and the amicus curiae, accordingly, request that it be granted an opportunity to present oral argument.
“The applicant seeks to advance submissions regarding the importance of the commission in strengthening the rule of law and contributing to long-term national stability in Lesotho; and the importance of the principle of open justice in assessing the veracity of Hashatsi’s allegations relating to the public nature of the commission’s proceedings and the manner in which the findings of the commission should be reported.”
Mr Petlane says the TRC’s position is that the commission is critical to the maintenance of rule of law in Lesotho.
“It is common cause that General Mahao was killed by members of the LDF, although the circumstances surrounding his death remain unclear.
“It seriously undermines the rule of law if there is no investigation into the death caused by the LDF.
“It is further untenable that any investigation can be conducted from within Lesotho, where those who might be implicated in the death hold positions within the military, and have so far failed or refused to divulge useful information.
“For Basotho to feel confident that justice is done, it is imperative that General Mahao’s death be investigated by an independent Commission of Inquiry.
“Despite the original decision of the SADC Troika that Court Martial proceedings be suspended pending the finalisation of the commission’s proceedings, the LDF proceeded to convene this court in circumstances that undermine the rule of law.”
Mr Petlane also says it was wrong for Lt-Col Hashatsi to seek the discontinuation of the inquiry.
“We submit that the commission cannot be faulted for the manner in which it conducted its proceedings.
“It allowed proceedings to be broadcast where the public interest so required and allowed witnesses to testify in camera where their safety required,” he said.
Mr Petlane warned of what could happen should the court rule in favour of Lt-Col Hashatsi.
“If the court grants the applicant the relief sought in the main application, it would have the effect that the commission’s proceedings are either set aside in their totality; evidence relating to the applicant will be expunged from the record of proceedings; and/or the report will be submitted to the prime minister and parliament prior to its submission to SADC. Noting that the prime minister is entitled to excise portions of the report prior to its submission to parliament in terms of the Public Inquiries Act, and the effect of any of the above scenarios will be the erosion of citizens’ perception of the rule of law in Lesotho.”