Amnesty cannot be implemented without nation’s buy-in: analysts

Lesotho Times
13 Min Read
RFP leader Sam Matekane. Pic by Maxwell Muza


Bongiwe Zihlangu

NEWLY appointed Prime Minister Sam Matekane’s plan for an amnesty for people accused of corruption, theft and embezzlement of government funds has elicited mixed reactions from analysts.

Despite their misgivings, some say such an amnesty could still work provided there in buy-in from all stakeholders. However, others believe that it will not only undermine the justice system which seeks to ensure that criminals pay for their conduct, it would also be used to shield politically connected individuals from accounting for their crimes.

The proposal is among several measures announced as part of Mr Matekane’s 20-point plan to put Lesotho on course for a social and economic turnaround.

Other key points in the ambitious action plan, to be implemented within his first 100 days in office, include the introduction of mandatory performance based contracts for premier and his cabinet ministers, fighting crime and corruption, reining in state spending and paying off long-suffering government suppliers.

According to Marie Chêne, the head of research at Transparency International, “the use of amnesty – whether in the case of economic crimes or human right abuses – is a politically controversial measure that challenges the principles of criminal responsibility and accountability.

“By cancelling the effect of a judicial decision and its consequences and/or stopping judicial investigations, amnesties may also undermine the deterrent effect of sanctioning and weaken the rule of law… There is also the fear that they may foster a culture of impunity,” Ms Chêne states in her article titled: The use of amnesties for corruption offences.

Her views regarding the controversial nature of amnesties have been borne out opposition Basotho Action Party (BAP) leader, Nqosa Mahao, who has come out guns blazing against the new government’s proposed amnesty.

Addressing a press conference last week, Professor Mahao said he was gravely worried by the proposal which he described as an “egregious plot” aimed at obstructing the course of justice and shielding criminals from facing the music.

“To a rational and conscientious mind, this (amnesty) is a worrisome omen”.

“There is ample reason to believe that this is an egregious plot engineered for the purpose of obstructing justice and the absolution of criminal suspects from prosecution in this context of endemic corruption in Lesotho.

“Without a shadow of doubt, for this matter to be declared a programme of government, it must have consciously been deliberated at length during the political bargaining to arrange a coalition government and to stipulate its business.

“The passage of such a (amnesty) law would abort the project of sustainable development and distort the agenda of democracy as such a law would be discriminatory and only benefit certain people.”

He vowed to fight the plan in parliament or in court if need be.

“I will engage RFP robustly in parliament over the amnesty bill if it will dare propose it. Other people who shall be unfairly discriminated by such a law have a right to challenge its constitutionality in the courts of law. Obviously, it is unbecoming for a leadership entrusted by popular vote to salvage Lesotho out of corruption-inflicted poverty to flagrantly circumvent the law in the manner envisaged.

“The government should uphold the law, observe the equality of all citizens before the law without any discrimination and it must steer clear of unscrupulous methods of selective justice that give impunity to special persons in political power. Such an untenable compromise of the law shall abort the project of sustainable development and distort the agenda of democracy,” Prof Mahao said.

Commenting on the issue, Transformation Resource Centre (TRC) executive director, Tsikoane Peshoane, said the amnesty proposal was highly controversial and urged the new government to “focus on issues that would unite the nation rather than divide it”.

“The amnesty is not only controversial but divisive too. If anything, the whole amnesty talk might cause government to lose focus. They must be careful lest this (amnesty) issue derails them from their programme of action. It is so divisive that to get consensus on this matter could be so expensive, at the detriment of critical priority issues. So, why take a gamble with controversial issues when there are easy low-hanging fruits that the government can focus on? So, I don’t think it is advisable for government to rush, especially where there are no special circumstances warranting an amnesty,” Mr Peshoane said.

Nevertheless, he urged the government not to go it alone in the event that it still wanted to forge ahead with the amnesty idea.

“This is not a decision that can be made by the executive arm of government alone. The executive must table a draft bill for an act of parliament that will provide a special dispensation or arrangement to either suspend existing criminal justice frameworks; or provide a specialised dispensation that will regulate amnesty. This is because, without a legal framework to facilitate the implementation of an amnesty, whatever government will attempt to do, will remain unconstitutional and unlawful.

In addition, this is a broad issue that must be defined and given context. One of the questions would be, who are you going to grant an amnesty? Who would you leave out? Are you going to give a civil servant an amnesty? Or is government going to grant amnesty to politicians only? Is it going to be given principal secretaries who are chief accounting officers of their ministries?

“I would therefore advise the government not to focus on divisive issues but instead target those that foster unity. They must go for the low-hanging fruits and unite this nation. But if they are intent to go ahead with the amnesty, they must do it as a long-term project. The prime minister must be patient about this. It requires adequate consultations to understand and define the concept and scope; to know where to start granting the amnesty and where to end it,” Mr Peshoane said.

On his part, Motlamelle Kapa, the Dean of the National University of Lesotho (NUL)’s Faculty of Political and Administrative Studies, said the government had begun on a wrong footing by proposing an amnesty for economic crimes.

“The new government that has just taken over, won an unprecedented number of seats (56 out of 79 seats) for a new political party. Considering the desperate circumstances under which it took over, it raised people’s hopes high, that it will rescue Lesotho from the predicament it finds itself in because of bad governance by the previous administration. I don’t think it bodes well for the government to come up with this policy when they know fully well that they were elected by Basotho who were fed-up with the by the way this country was being governed. By now they should have explained and given this thing context. Why do we need it? Nothing is being said. It therefore raises eyebrows as to what the intention of government really is.

“For them to begin with an amnesty that is not even properly explained in terms of what it seeks to achieve and how it will be applied means they have started on the wrong footing.

“I’m not aware of any law which provides for an amnesty for impunity.  What is this amnesty intended to achieve? It ought to be given context and rationale. They must tell us where they have seen amnesty for economic crimes working,” Dr Kapa said.

Despite his misgivings, he suggested that an amnesty could still be granted providing the government explained its intentions and obtained the buy-in of the nation.

“In my view, the government should have started by investigating the disappearance of the M6, 1 billion (which Auditor General Monica Besetsa said could not be accounted for in the 2020/21 fiscal year). They should have tried to bring the culprits to book. An amnesty should only be considered when all normal processes to ensure accountability in a democracy have been exhausted.

“I want to believe that since this government is still very new, it will take time out to deliberate further on this issue, and maybe even abandon it because it is highly unpopular in a democratic setting where criminal impunity is not tolerated.

“It would be advisable for the government to drop the issue or at the least talk to Basotho about it. The government must explain the amnesty thoroughly and obtain the people’s buy-in even before they can even think of implementing it,” Dr Kapa added.

On his part, the director of the Private Sector Foundation, Thabo Qhesi, said, “The research I’ve conducted has shown that amnesties for economic crimes were not successes in the countries where they were implemented”.

“For instance, Romania tried it and the nation protested until it was abandoned. The European Union (EU) even waded into the matter, cautioning Romania not to go ahead with the amnesty. It was eventually scrapped.

“However, Prime Minister Matekane should be given room to unpack and elaborate on his government’s proposed amnesty. As things stand, even supporters of the ruling party are unable to explain and justify it. They must be given an opportunity to explain it in broad terms. But as I have said already, Romania and a few other countries experienced major resistance,” Mr Qhesi said.

Transparency International’s Chêne makes similar observations that amnesties for economic crimes have only been implemented in very few countries like Tunisia, Moldova and Romania where they were “met with massive resistance”.

Despite their controversial nature, Ms Chêne says that amnesties can still “play an important anti-corruption role and contribute to the transformation of the political culture of a particular society.

“In certain cases, the recourse to amnesty laws for economic crimes may also be justified, either for pragmatic reasons or by the specific political circumstances of a given country,” Ms Chêne states.

In Lesotho, such pragmatic reasons or specific political circumstances could be the need to achieve healing as well as save the country millions which could be otherwise wasted on prosecuting offenders in long-running and often unwinnable cases.


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