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Lawyers fear for SADC inquiry

by Sunday Express
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Justice-MphaphiPhumaphe-Chairman-of-SADC-Juidicial-Commission-of-Inquiry-to-Lesotho-4Keiso Mohloboli

Five lawyers representing 23 soldiers detained at Maseru Maximum Security Prison for suspected mutiny have written to the head of SADC’s Commission of Inquiry into Lesotho’s instability, Justice Mpathi Phumaphi, expressing concern over government’s decision to proceed with a Court Martial for their clients.

The lawyers—Attorney Khotso Nthontho, Advocate Haae Phoofolo (King’s Counsel), Advocate Christopher Lephuthing, Attorney Tumisang Mosotho and Advocate Koili Ndebele—submitted their communiqué to Justice Phumaphi on Friday highlighting fears the Commission could end up being invalidated should the Court Martial continue.

The solicitors are also concerned that convening the court goes against SADC’s 3 July 2015 decision to put it on hold until the Commission has concluded its probe.

In their letter, the lawyers note: “We are aware that following disturbing security developments in Lesotho, including the arrest and detention of our clients (on different dates between May and June this year) and the tragic killing of Lieutenant General Maaparankoe Mahao (on 25 June 2015), the chairperson of the SADC Organ on Politics, Defence and Security sent to Lesotho a ministerial fact-finding mission on 26-29 June 2015.

“We note that on the basis of the report by the fact-finding mission, an Extraordinary Double Troika Summit was held in Pretoria on 3 July 2015.

“We note further that the Summit decided to establish an independent Commission of Inquiry to, amongst others, review investigations into the alleged mutiny plot and circumstances surrounding the death of Lt Gen Mahao.

“We further note that the summit decided that Lesotho put on hold the Court Martial processes pending the findings of the Commission of Inquiry.

“But whilst our clients were prepared and making arrangements to appear before the Commission, events took a new turn. The Minister of Defence and National Security, Mr Tšeliso Mokhosi, issued a Convening Order for the Court Martial, the net effect of which is that the government  of Lesotho is now going ahead with Court Martial proceedings against our clients on allegations of mutiny.

“May we bring to your attention that the Convening Order was issued in complete violation of the decision of the Summit that the government of Lesotho should stay Court Martial proceedings pending the outcome of the Commission of Inquiry. This Convening Order was issued on 13 August 2015 and whilst the decision of the Summit in this regard, was operative”.

The lawyers then accuse government of abusing its authority in the whole issue.

“In our fair and honest opinion, and based on the conduct of the Government of Lesotho since the 3 July 2015 decision by the Summit, our Government is abusing its authority to frustrate the workings of the Commission.

“We are aware that during the past Double Troika Summit held in Botswana, the Summit expressed its concern that Terms of Reference published in the Gazette by the Government of Lesotho on 28 August 2015 deviate fundamentally form those approved by the Summit in Pretoria. The Summit also noted that despite members being sworn in on 10 August 2015, the Commission is yet to make headway.

“The Summit concluded that the pace of the Commission is largely influenced by how quickly the Government of Lesotho facilitates its work. Thus far, the Government of Lesotho has done nothing but frustrate the functioning of the Commission. As already stated, the convening of the Court Martial by the Honourable Minister is, with respect, yet another tactic on the part of our Government to frustrate the Commission.

“Since the last Summit in Botswana, the Government of Lesotho has informed the general public that the Summit has concluded that its earlier decision to stay Court Martial proceedings has been overtaken by ‘certain developments in the courts of Lesotho’ and has accordingly given the green-light for the Court Martial to proceed. May we put it on record that we are not aware of any ‘developments in the courts of Lesotho’ that could have called for the uplifting of the suspension of the Court Martial proceedings.

“At this stage, we cannot confirm that indeed the Summit so decided but we will operate on the assumption that what we are told by the Government of Lesotho is correct. That being the case, we doubt that the Government of Lesotho disclosed to the Summit that it had already pressed ahead and convened the Court Martial despite the earlier decision of the Summit. The disclosure of this fact would, in our opinion, likely have informed any subsequent decision by the Summit differently as opposed to what we are told to be the present decision.

“We submit, with utmost respect, that allegations by the Government of Lesotho that the decision to stay Court Martial proceedings has been overtaken by certain developments in the court of Lesotho, was actually a ploy to cover?up for their convening a Court Martial despite the Summit decision to the contrary. We note with keen interest that the Convening Order was issued just a few days before the Summit.

“If indeed, the Summit decided that the Court Martial may proceed, we hold the opinion that decision was informed by both wrong facts and non?disclosure of material facts.”

The Court Martial and Commission of Inquiry, the lawyers add, could not run concurrently.

“We respectfully submit that the running of parallel curial Court Martial proceedings will certainly constrain the powers of the Commission, if not completely bar any further conduct of the Commission. The overlap between the Commission’s inquiry and the Court Martial proceedings will invariably have profound implications not only for the conduct, but also the effectiveness of the work of the Commission, including the extent to which it can fulfil its objective of inquiring into the alleged mutiny plot.

“Should this course be allowed, there is a real risk that the administration of justice will certainly be brought into disrepute. There is a further risk that the two institutions, that is the Commission and the Court Martial, may arrive at completely different findings yet presented with the same set of facts and/or evidence.

“Remarkably, the Commission itself would run the risk of contempt of court should it proceed with the inquiry despite the convening of the Court Martial. As Gibbs, C.J observed in Victoria v ABCBEL (1982) 152 CLR 25 at 99, if a Commission is Inquiry into

allegations that a person has committed a crime, and a criminal prosecution is commenced during that inquiry against that person based on those allegations, the continuance of the inquiry would amount to a contempt of court and the proper course would be to adjourn the inquiry until the disposal of the criminal proceedings”, further reads the lawyers’ letter.

The five legal representatives then accuse the government of trying to scuttle the Commission’s investigation.

“In our view, the convening of the Court Martial by the Government of Lesotho a few days

before the Gaborone Summit (of two weeks ago) and full violation of the Pretoria Summit in that regard, was but an execution of the Government’s well-informed and deliberate intention to further embarrass not only the Commission and its work, but also the SADC family as a whole in its efforts to resolve the security situation in Lesotho”.

“Very unfortunately, SADC fell into the trap set by the Government of Lesotho and authorised the continuation of Court Martial proceedings?if indeed the Summit so decided. In our respectful opinion, the Commission is better-positioned to properly inquire into sources and reasons of the current security crisis in Lesotho, without concentrating on the innocence or guilt of any particular individual. On the contrary, by its very nature, a Court Martial’s scope is limited to inquiring into the innocence or guilt of a given individual”.

“Should the Commission fail to proceed as anticipated because of the reasons outlined herein, then all other individuals who might be in a position to shed light on the security situation in Lesotho would be denied such an opportunity and there might never be another opportunity to discover the truth and put Lesotho’s security problems to a permanent stop. Accordingly, it will not be far-fetched to conclude that these manoeuvres on the part of the Government of Lesotho are meant at ensuring that certain individuals do not appear before the Commission and/or protecting certain individuals from being tested before the Commission”.

“This is the ultimate goal of the Government of Lesotho; to push the Commission to death right at its infancy and before any important discoveries could be made.

“We thus kindly request the Commission to carefully consider our submissions in this regard and even transmit the same to the SADC Secretariat for immediate remedial action.

“We understand that SADC has committed considerable resources to the Commission and it will indeed be a sad day for Lesotho should the Commission fail to proceed due to safeguarding of selfish interests by certain sectors. May we place it on record that on behalf of our clients, we are not, in any way suggesting that there should never be Court Martial proceedings for the alleged mutiny. Rather, we hold a firm position that the security crisis in Lesotho goes far beyond the innocence or guilt of our clients of the alleged mutiny. It is further our understanding that the Commission is not intended to usurp the authority of the courts of Lesotho but instead, assist the courts to eventually do justice to all concerned.”

 

Meanwhile, Attorney Nthontho yesterday confirmed writing to Justice Phumaphi, adding the letter was also copied to SADC Facilitator to Lesotho, South Africa’s Deputy President Cyril Ramaphosa. Mr Ramaphosa was appointed to the role last year by the regional bloc, and subsequently brokered Lesotho’s early elections on 28 February this year, which prematurely ended the tenure of the persistently bickering Thomas Thabane-led government.

 

Attorney Nthontho said: “The SADC Commission of Inquiry and Court Martial are two judicial bodies which cannot proceed at the same time on a similar case. Our clients are prepared to appear before any of the two but one at a time, and not jointly.

 

“What if the findings of the Commission say there was no mutiny? What will happen when the Court Martial finds the suspects guilty of the mutiny or vice-versa? It will be contradictory and cause chaos.

 

“If they proceed together, the findings of the Commission of Inquiry will be irrelevant.”

 

There was no immediate comment from the Commission of Inquiry, as well as government.

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