- Bill proposes immunity for members of the security sector facing mutiny, murder and other acts of treason.
- Protects the govt, its officers, agents or functionaries from prosecution.
THE seven-party coalition government is working on a bill to grant members of the security sector a blanket amnesty for offences committed between January 2007 and December 2015.
This is according to the Amnesty Bill, 2016, which is still being drafted by the government. The Sunday Express understands the draft law will be tabled in the National Assembly after it reconvenes on 11 November this year.
The bill was mooted in June this year by Prime Minister Pakalitha Mosisili while giving government’s position on the Southern African Development Community (SADC) Commission of Inquiry’s report to the National Assembly. He described the idea of an amnesty as “quite attractive”, adding the government was considering a general amnesty for soldiers accused of mutiny, murder and other acts of treason.
If tabled in the National Assembly 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 the Lesotho Defence Force (LDF) whom the SADC Inquiry had recommended should face prosecution get off scot-free.
The 10-member commission carried out its investigations between 31 August and 23 October 2015 and was led by Justice Mpaphi Phumaphi from Botswana. 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.
Dr Mosisili said while government was open to the idea of an amnesty, making a distinction between those accused of mutiny and those accused of murder would be “insensitive and unwise”.
He also stated that government felt “a wide application of this (SADC) recommendation in the form of a general amnesty that covers all these officers would go some distance in paving the way to lasting peace and tranquillity”.
“An amnesty is always controversial. But government feels that this may be the best thing to do in these circumstances,” the premier said at the time.
“All that remains is for government and other stakeholders to enter into appropriate consultations, and to work out modalities, including administrative and legislative arrangements and procedures, if indeed there were to be consensus to take the amnesty route.”
However, Dr Mosisili also stressed the proposed amnesty would not include those accused of 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.
Part of the bill reads: “An Act to make a provision for the granting of amnesty to persons who are members of the disciplined force and services and any other person liable to criminal prosecution and/or disciplinary proceedings and/or civil action, and to the government of Lesotho, its officers, agents and functionaries liable to civil action, and connected matters.”
When passed into a law, the bill will be cited as the Amnesty Act, 2016 “and shall come into operation on the date to be appointed by the Minister by notice published in the gazette”.
The bill stipulates that no action “or legal proceedings whatsoever whether criminal, disciplinary or civil shall be instituted in any court of law or administrative tribunal . . .” to a person granted amnesty.
The proposed amnesty would be granted to members of the LDF, Lesotho Mounted Police Service, National Security Service and Lesotho Correctional Service.
It would also be granted to “any other person who is not a member of the disciplined force or services; and the government of Lesotho, its officers, agents or functionaries”.
The draft law further provides that “no action or other legal proceedings whatsoever, whether criminal, disciplinary or civil, shall be instituted in any court of law or administrative tribunal against a person,” granted amnesty.
The amnesty would be granted “for, or on account of, or in respect of, or arising from, or connected with any acts commissions or matter whatsoever done during the period 1 January 2007 to 31st December 2015”.
The amnesty is provided for acts “done or purported to have been done in the execution of duty or within the scope or course of employment and for the protection and defence of the Kingdom of Lesotho or for public safety or order, or for the prevention or suppression of mutiny or internal disorder, or done on a frolic of duty, outside the scope or course of employment in order to, including in a case of a person acting privately, cause national instability and endanger national security for political ends or motives”.
The amnesty draft law also indicates that in the case where there has already been civil, criminal or disciplinary proceedings instituted against offences covered by the bill, the courts may make any orders they deem fit.
“If any such proceedings have been instituted whether before or after the commencement of this Act, in the case of criminal or civil proceedings, the court concerned may make such an order as it may deem fit and proper in the interest of the proper administration of justice and fairness to the parties, and, in the case of disciplinary proceedings of any administrative tribunal or court martial, such proceedings shall forthwith be discontinued,” reads the draft law.
The draft law further provides that if found necessary and “satisfactory”, the Minister of Finance may make necessary compensation to aggrieved persons.
However, the proposed amnesty law has drawn the ire of the opposition, civil society and the Mahao family, who accuse the government of fomenting impunity by letting off perpetrators of a myriad of serious crimes.
Civil society organisations have argued that the alleged mutiny and murder offences were as different as chalk and cheese. They said the alleged mutiny offence was essentially a military disciplinary issue while the allegations of murder and torture were violations of national law.
The slain former army commander’s brother, Professor Nqosa Mahao also argued that amnesty was only granted to people who had been prosecuted and found guilty.
“We are definitely going to challenge the general amnesty law the government is intending to enact because that would be unconstitutional,” Prof Mahao said in a previous interview with the Sunday Express.
“The prime minister is exploiting this recommendation by suggesting a general amnesty. SADC spent a lot of money to conduct its inquiry and concluded there was no evidence to prove the mutiny.”
Tefo Mapesela, who is the spokesperson of the main opposition party, All Basotho Convention, echoed the sentiment, saying they would not support a bill that “went against the spirit of reconciliation”.
“If true reconciliation is to take place in Lesotho, the people earmarked for that amnesty should first disclose the offences they committed as was the case during South Africa’s Truth and Reconciliation Commission,” he said, referring to the court-like restorative justice body assembled in South Africa after the abolition of apartheid in 1994.
“If those suspects of murder and torture don’t confess to their crimes, then the cycle of impunity will continue and we cannot be party to that. They need to admit to their actions and the motives for their crimes.”
Efforts to contact Mr Mokhosi yesterday were fruitless as his mobile phone rang unanswered.