LET us start from premise that the Southern African Development Community (SADC) Commission of Inquiry recommendations are adopted, binding and prosecutable. In the aftermath of the discussion by the SADC Troika on Politics, Defense and Security Development on Lesotho’s instability and the circumstances surrounding the killing of former Lesotho Defence Force (LDF) commander Lieutenant-General Maaparankoe Mahao, it is perhaps appropriate to discuss the prudence of establishing a truth and reconciliation commission (TRC) for whoever is responsible for any transgressions of the law. I am piqued to air my opinion on this proposition by some unscrupulous members of our society and politicians who are brandishing this misnomer in relation to the pertinent issues in Lesotho.
Their flawed argument is that if the Commission happens to recommend the institution of criminal prosecution against those suspected of criminal conduct then they should be spared the retribution of sanction by our criminal justice system.
They further draw comparisons (through certain radio stations) between their proposed TRC for Lesotho with those in post-apartheid South Africa (SA) and other countries. Readers will recall that in post-apartheid SA, most of the perpetrators of gross human rights violation and heinous killings were spared the retribution of the country’s criminal justice system after they owned-up to their criminal deeds. This was done in an effort to reconcile the oppressed and persecuted black majority with the mostly white minority under the evil system of apartheid. This was a collective national attempt to reconcile the different races that were so polarized by the evil system of the government that mankind has ever known.
The new regime also made attempts, although the jury is still out, to redress the unfortunate imbalance of the evil apartheid regime. To their credit, the perpetrators of these gross human rights violations that were systematically, unleashed on the majority black population owned-up and admitted their indiscretions publicly and asked for forgiveness.
In one such revelation of their evils that will forever remain etched in my memory, the revelations even moved the Emeritus Anglican Archbishop of Cape Town, Desmond Tutu, to tears on public television in a scene that was broadcast all over the world. The perpetrators bared all their evil deeds to the world.
Let us, for argument’s sake, which I sincerely doubt will ever happen with our arrogant perpetrators in Lesotho, imagine that we reach a TRC intervention, evidently by their conduct and answers before the SADC Commission. The perpetrators of these evil deeds would never own-up and apologize to their victims in Lesotho. If anything, they are arrogant and adamant that the callous and heinous deeds they are alleged to have committed were justified. To add insult to injury, one such perpetrator, name withheld, re-iterated in his testimony before the Commission that they were still going to resume their callous wanton deeds even after the Commission has wrapped-up its work. Where is the attempt to reconcile with the victims as in the SA-TRC? None! Except a display of arrogance and persistent persecution that is in fact contemptuous.
In apartheid SA like in Lesotho, at least by conduct, and public utterances of our government, ostensibly, government is acquiescing to the persistent persecution of the victims as it seems not to care nor issue a public condemnation or make tangible attempts to bring to book the perpetrators of gross human rights violations, flaunting of legitimate court orders and various other acts of misrule. If anything government seems to acquiesce to these unfortunate deeds. However, the similarity ends here sadly.
In apartheid SA there was a whole battery of draconian statutes that were in place to perpetrate the evil system of apartheid such as the Riotous Assembly, Suppression of Commission, Group Areas, Separate Amenities, and the Constitution that ensures a white-only, later Tri-cameral Parliament Acts. In contrast, Lesotho has no such draconian pieces of legislation to perpetrate the type of persecution that another half or more of the populace live under. At least with the apartheid zealots their defense or rather flowed justification was that they were acting in pursuance of their country but in Lesotho such argument is zilch. It simply does not hold water. This kingdom has laws and a Constitution in place that are equitable and need to be applied to all persons alike. This kingdom has the Judiciary that, barring the odd intimidation and undermining of the rule of law and its independence, is as good and impartial as any in an acceptable modern democratic dispensation.
However, with Lesotho the unfortunate scenario is that some institutions that are constitutionally charged with promoting and upholding the rule of law and applying equitable laws of the kingdom are doing the direct opposite. They are, for emphasis sake, unashamedly engaging in the antithesis of this noble system of government that is at peace with itself and the world. In contrast, apartheid was state sponsored terrorism and this is not the scenario that obtains in Lesotho. In Lesotho, some institutions and very high-ranking officials are simply sleeping on the job or undermining the authority of the state and its democratic institutions. There are therefore legal and institutional interventions already in place to address this scenario. Since 1993, Lesotho had the foundational, institutional and legal capacity and framework to found the bedrock of a solid democracy where the state lives at peace with its citizens, institutions within its boundaries and other countries. In contrast, SA since 1945 until 1994, never had these frameworks and institutions. The situation in Lesotho therefore does not call for a TRC at all.
Furthermore, in apartheid SA one would argue that the legal and institutional framework that existed prior to 1994 somehow justified the establishment of the TRC but not so in Lesotho. In apartheid SA, this framework warranted the black majority and like-minded whites to declare war and take-up arms against the evil system of apartheid. These people therefore went underground and abroad to lodge internecine armed struggle against apartheid.
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Their efforts were supported materially and morally by the international community. However, in Lesotho by contrast, no citizens have taken-up arms against the state or its institutions. All citizens that are against the politicians of the state and its institutions are still within the geographical borders of Lesotho barring those hundreds that have been forced, to flee Lesotho, so they inform the world and their supporters, by the institutions of the state. However, they have not taken up arms against the state, South Africa was by contrast was a nation that was at war with itself.
Proponents of a TRC for Lesotho better be warned that this well-meaning initiative by other countries that generally had serious far-reaching problems was not used as a vehicle to shield unrepentant perpetrators of gross human rights violations and crimes against humanity against prosecution but was used as an intervention to not only to placate and compensate the victims not to defeat the ends of justice. If the alleged perpetrators of crime in Lesotho are afforded the TRC option this country will forever wallow in the evil sea of lawlessness by callous people who know that they will escape the punitive sanction of the law by hiding behind the TRC- type institution. This will in addition be unacceptable, will give bad precedence to would-be violators of the law. They will forever engage in heinous acts and violations of the law knowing that their panacea to their callous deeds will be the TRC-type intervention. This country cannot afford it when evil people violate the law and ride roughshod over others, maim and kill them and finally defy legitimate court orders only to seek refuge in this noble intervention of the TRC-type intervention.
It is a sacrosanct underlying principle of every modern progressive democracy that the law must be allowed to take its course. Why should Lesotho be an exception? It is absolutely unacceptable and disingenuous. We cannot afford to sweep our dirt under the carpet else our collective evil past will rear its ugly head again with disastrous consequences.
However it should not be forgotten that all these arguments are advanced in the face of the vehement refusal to receive the report by the Lesotho government arguing that there is a court case pending against it which however, strangely government did not even bother to oppose defend.
This behavior by government is akin to a kid who borrows the other kids who are visiting his home a football to play in a game he participates in. Then on realizing that he is losing the game he stealthily, before the game is over, takes the ball away in the hope that there will be no result or even an inkling of the result of the game which however, is a foregone result. In brief, this is the strange and damaging stance the Lesotho government has adopted.