Analysts have described tomorrow as a defining moment for Lesotho.
Prime Minister Pakalitha Mosisili’s government was given until 1 February 2016 to release the much-anticipated Southern African Development Community (SADC) report into the killing of former army commander Maaparankoe Mahao, while the trial of 23 soldiers accused of mutiny resumes in the Court Martial, also tomorrow.
Lieutenant-General Mahao was killed by fellow soldiers just outside his Mokema farm on 25 June 2015, prompting Dr Mosisili to seek SADC’s help in establishing what really transpired that fateful afternoon, as well as finding solutions to the country’s other security-related challenges.
SADC has since directed the government to publish the results of the investigation headed by Justice Mpaphi Phumaphi not later than 1 February 2016, after Dr Mosisili had initially refused to receive the document citing a High Court case lodged by Lt-Col Tefo Hashatsi challenging the probe’s legitimacy.
It was only after the SADC Double Troika summit held in Botswana on 18 February had threatened Lesotho with suspension from the regional bloc and also to publish the report, that Dr Mosisili eventually took the document.
However, soon after returning from the SADC summit, which was attended by Botswana president Ian Khama (SADC chair), South Africa president Jacob Zuma, Swaziland Prime Minister Barnabas Sibusiso Dlamini, President Filipe Jacinto Nyusi of Mozambique, Tanzania Prime Minister Majaliwa Majaliwa, and Zimbabwe Foreign Affairs Minister Simbarashe Mumbengegwi, the premier told Basotho that his seven-party government might remove certain parts of the report should this be necessary in the interest of national security, before making the document public.
On the other hand, the opposition says should this happen, it would publish the original report and demand full implementation of its recommendations, setting the stage for a potentially explosive showdown between the two parties.
Meanwhile, the trial of 23 LDF members charged with mutiny is expected to resume tomorrow in Maseru. The soldiers, who were arrested between May and June 2015, are accused of plotting to overthrow the LDF command alongside the now-late Lt-Gen Mahao. The military says Lt-Gen Mahao was killed while resisting arrest for his part in the alleged mutiny.
Yet it is the SADC report which is key to what happens in Lesotho going forward. In addition to revealing what happened to Lt-Gen Mahao, the report could also determine the fate of the mutiny suspects, and if exiled opposition leaders—former prime minister and All Basotho Convention (ABC) leader Thomas Thabane, Basotho National Party (BNP) leader Thesele ‘Maseribane and Reformed Congress of Lesotho (RCL) leader Keketso Rantšo—would be finally returning home. The three leaders, their supporters and some LDF members fled the country last year amid claims that the military was planning to assassinate them. The army and government reject these claims.
Again this week, on 5 February, a case launched by Lt-Col Hashatsi challenging the legitimacy of Justice Phumaphi’s Commission of Inquiry, continues in the High Court. This is despite SADC declaring that its processes are not subject to litigation by member states.
According to Transformation Resource Centre’s Social and Environmental Justice Programme Head, Tsikoane Peshoane, this week would test the government to the limit because of the tough decisions that need to be made.
Mr Peshoane believes the report would have implications on the Court Martial proceedings, but doubts if it would influence the military as far as the trial is concerned.
But Mr Peshoane also wonders why the SADC Double Troika communiqué did not say anything about the mutiny suspects but only that the Phumaphi report should be released within 14 days and also that government should ensure the exiles’ safe return .
“Maybe SADC is not convinced that these are genuine mutiny charges,” Mr Peshoane says. “What’s important to note is that the communiqué only points to the safe return of the exiles but does not mention the mutiny charges per say; maybe it’s because the commission didn’t find any mutiny.
“But still, the LDF can have its own interpretation of what the communiqué says that could be different.”
On the prime minister’s suggestions that the report could be published with certain parts expunged for security reasons, Mr Peshoane said the statement was like “putting the cart before the horse”.
He added: “The PM talks of the Attorney General’s advice about the report, but what is worrying is that this adviser is not an expert on security matters. He should consult widely on security matters. He should consult a wide spectrum of stakeholders. He also needs to define what constitutes state security.
“The task of defining what national security is can’t be left to the prime minister alone lest he ends up using that as a pretext to stifle democratic processes. It’s a grey area but it should be well-defined before anything is taken out of the report.”
Mr Peshoane also said chances are high that the Phumaphi report would assist lawyers representing the mutiny-accused soldiers if it says there was no plot to revolt in the LDF as is being alleged.
“That’s why I am saying it would be premature for the Court Martial proceedings to continue on the day the report is supposed to be published,” he said.
Asked if the deadlines set by the Double Troika for the government to publish the report and ensure the safe return of the exiles were possible, Mr Peshoane said they were not.
“There is no movement on the ground for the return of the opposition leaders. Again, the leaders said they would only return if Lt-Gen Kamoli was no longer LDF commander, and this has not happened.
“There is need for dialogue between the two warring groups and it has not taken place. By 1 February, not much would have been achieved,” said Mr Peshoane.
Mr Peshoane also said Lt-Gen Mahao’s widow and family, should be considered in whatever the various stakeholders are doing pertaining to the SADC report.
“What answers would be given in response to the questions raised by the Mahao family on the killing of their son if the contents of the report, which I believe to be closely intertwined, are expunged to leave room for more questions and not answers?” asked Peshoane.
On his part, Constitutional and Human Rights lawyer, Advocate Tekane Maqakachane, said it would be wise to wait until 1 February “before jumping to conclusions”.
“When the report is published, the Court Martial proceedings and parliament’s discussion of the report take place, and Lt-Col Hashatsi’s case is heard, only then can we benchmark these events against the law,” Advocate Maqakachane said.
“Only then can we ask: is this the proper way to go about it? There are two areas here for questions to be asked—one is on national laws and the other on the country’s international obligations.
“We would have to benchmark on the two paradigms of national and international laws.”
Advocate Maqakachane also argues if the country fails to abide by its international obligations and SADC’s directives, it could face serious repercussions.
However, he stresses the point that every Mosotho has the right to approach a court of law in Lesotho to seek the protection of his rights if he feels they are being infringed upon.
Lt-Col Hashatsi approached the High Court after feeling the SADC commission had been biased when it interviewed him and made him appear a suspect in the killing of Lt-Gen Mahao.
Dr Motlamelle Kapa, a Political Science lecturer at the National University of Lesotho, said Basotho should expect to see the Phumaphi report on 1 February in line with the SADC directives.
However, he expressed surprise that parliament would only be sitting on 8 February and get the chance to debate the report, which is well after the SADC deadline.
Dr Kapa also said the Court Martial set for 1 February does not matter to SADC.
“What the government is saying is just political rhetoric as it is clear they are out of options and they have to be held accountable. As far as I’m concerned, the Court Martial does not matter anymore as we have already heard from those privy to the report that the Commission of Inquiry did not find any evidence of mutiny,” said Dr Kapa.
On the other hand, Political Economist Arthur Majara, said court martials bring justice when there are problems of indiscipline in the army.
Mr Majara also pointed that the publication of the report cannot affect the proceeding of the Court Martial but if there are conflicting issues from the two, then the courts of law would be well-placed to make a determination.
On the relevance of Lt-Col Hashatsi’s court challenge, Mr Majara said the case no longer had any effect as it had been overtaken by events.
“The commission’s report is protected by international law and the political pressure from the opposition is too heavy, as well as SADC, which shows there is need for the release of the report. There also seems to be a desire on the part of government to be accountable and that says there is no possibility of the court stopping the publication of the report,” said Mr Majara.
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