By Professor Mafa M. Sejanamane
“The first method for estimating the intelligence of a ruler is to look at the men he has around him.” Niccolo Machiavelli
THE principles and objectives of SADC since its formation are enumerated in the Consolidated Text of the Treaty of the Southern African Development Community. Among the principles are solidarity, peace and security; and human rights, democracy and the rule of law. The objectives are to:
- Promote common political values, systems and other shared values which are transmitted through institutions which are democratic, legitimate and effective;
- Consolidate, defend and maintain democracy, peace, security and stability.
It is in accordance with the SADC principles on solidarity, peace and security and in line with the objectives of the organization to promote democratic values and systems that Lesotho has, for over 20 years, been scrutinized. For most of that period, SADC has utilized political and diplomatic assets to ensure that this black sheep of the region is brought to order, and to bring to order those who have crossed the democratic line.
In addition to the above, SADC has on two previous occasions used force or the threat of force to ensure order and the rule of law is restored. In 1998, it brought in units of the South African and Botswana armies, later joined by Mozambican forces to quell a rebellion which had started off as a protest against the 1998 election results. From September 2014 after an attempted coup which led to the fleeing of both the then prime minister and several other senior personnel to South Africa, SADC brought them back into the country under its security detail. This security cover to key political leaders was provided until the 2015 elections and included increased election security protection by the same.
The crux of the matter is that Lesotho has over 20 years depended on regional solidarity to ensure that remnants of the State remain functional. In both 1994 and 1998, some of those holding political office now know that they were only brought back to office through SADC intervention. Knowing that, they should have been gratified that SADC has political and diplomatic muscle which our government cannot match. The leadership, however, seems to have taken regional solidarity for granted to the extent that a junior officer can go to the media and virtually dare SADC to do its worst. Solidarity has limits. Political office bearers must read the signs and prepare for the backlash from SADC for a number of provocative actions they have taken against the established norms within the region.
In all those interventions, SADC restricted itself to stopping wrongdoing rather than to make wrongdoers to account for their deeds. As I will try to show below, the current SADC intervention in Lesotho is more focussed on ensuring accountability than merely stopping wrongdoing. The Phumaphi Commission was primarily established by SADC to gather facts about the murder of Lieutenant-General Maaparankoe Mahao and the alleged mutiny within the Lesotho Defence Force. It was specifically meant to find the facts and to identify those implicated in the nefarious activities which continue to destabilise the country. It was meant to bring to an end its never-ending interventions in Lesotho. Setting up the Commission was unprecedented and also an indicator that the internal structures had fallen apart.
For purposes of this article, I will only outline and analyse the issues related to the latest developments around the Phumaphi Commission and the collapse of the rule of law in Lesotho. Now that the Commission has reported to the Troika, the critical question is not whether there will be accountability, but what structures have been established to enforce accountability.
Obstructing the SADC Commission
It must, for purposes of record, be pointed out that the Double Troika meeting which formed the Phumaphi Commission was preceded by a discussion of the Mapisa-Nqagula Fact Finding Mission Report which clearly spelt out the deteriorating security environment in Lesotho. It is for the same reasons that the Lesotho government was requested to cooperate with the Commission to ensure that it is able to do its work. From the beginning, however, there were extraordinary measures taken by government to obstruct the work of the Commission. While there have been many attempts, the following are the most significant:
- The initial government attempt to emasculate the Commission began with the publication of the Terms of Reference (ToRs) of the Commission of Inquiry under the auspices of the Public Inquiries Act 1994. SADC had issued clear ToRs which were focused on dealing with the security issues and also the murder of Lt-Gen Mahao. The first batch of ToRs in a government gazette in July 2015 was unambiguous. They were meant to dilute the focus of the Commission by redirecting its efforts into broader governance issues i.e. whether increasing police salaries in the middle of the financial year was legal. The SADC Summit in Gaborone in August 2015 rejected the bid and insisted that the ToRs should be published as approved by the Double Troika in July 2015.
- The second attempt to frustrate the work of the Commission was made by Colonel Bulane Sechele, representing the LDF in the first day of the sitting of the Commission. Col Sechele first demanded that the Commission must not investigate any matter related to the alleged mutiny since that fell within the competence of the court-martial. The Commission rightly rejected that since it could not amend its own mandate. Second, Col Sechele refused to reveal the names of people who were involved in an operation which he conceded he headed on the alleged mutiny using both what he called operational rules and also the principle of self-incrimination. This was however a futile excise since he had already conceded that he headed the operation. In terms of the common purpose principle, it is irrelevant who pulled the trigger, what matters is that a group of people had a common purpose to commit a crime. It’s significant that all those who followed Col Sechele in giving evidence to the Commission, including the prime minister refused to disclose the names of the soldiers who killed Mahao and also the murder weapons and also the vehicles used were not surrendered to the investigators or the Commission allowed to have access to them.
- Third, one of the key issues which the Phumaphi Commission was mandated to undertake was the alleged mutiny plot. The Commission was denied access to the detained soldiers who were held at the maximum prison. Despite clear indications by the soldiers that they wanted to meet the Commission, they were kept away from it by the LDF command. This was the most blatant obstruction of the investigations.
Despite these obstructions, the Commission was able to hear gripping testimonies about the activities of the LDF command determined to obstruct justice; by acting as a haven for criminals within its ranks by refusing to cooperate with the police on investigations including those of murder; and the inhumane torture of the detained soldiers. It is these troubling things which inevitably will be part of the Phumaphi report which has now been tabled and discussed by the Extraordinary Troika Summit of SADC Heads of State and Government in Sandton, South Africa on 5 December 2015. The report was submitted and discussed in spite of claims and attempts by government to delay its submission until a case by Lieutenant-Colonel Tefo Hashatsi against both the government and SADC was finalised in the courts.
Significance of the Hashatsi case
Lt-Col Hashatsi was among the LDF members who were summoned and gave evidence to the Phumaphi Commission. He was asked pertinent questions about his previous statements about the removal of the LDF commander, where he said that the latter would be removed on his dead body. He was summoned once again to appear before the Commission but sought to avoid appearing again. This was after additional evidence had been heard by the Commission on his role in the matters under investigation. His response was to launch an urgent application in the High Court seeking amongst other things that the Commission must be disbanded and any mention of his name in the report be forbidden. There is nothing novel about the case except in the following.
First, it must be noted that almost all the issues which were canvased in Lt-Col Hashatsi’s case were previously raised by the same lawyer who now represents Lt-Col Hashatsi in the last day of the Commission’s hearing in Maseru before the latter moved to Thaba-Nchu in South Africa to hear the evidence of exiles. The lawyer was then representing the government. In this case the first respondent was the prime minister, who incidentally did not respond to the matters raised by Lt-Col Hashatsi.
Indeed, nobody on the government side replied to Lt-Col Hashatsi’s papers. It was a clear case of a conspiracy to sue oneself. In this case, the face was that of Lt-Col Hashatsi, but the real case was of the government suing itself and obviously not answering any of the issues raised. The only problem with that strategy was that government did not foresee the possibility of the Mahao family applying to be enjoined to the case. The assumption was that judgement in their favour was almost guaranteed. The grant plan could therefore not work except that it would now be used as a delaying tactic on the basis that there is a court process on issues related to the Commission.
Secondly, suing SADC in itself was a panic measure, but also a gigantic gamble by Lt-Col Hashatsi and those around him. SADC member states are fully aware that in terms of their treaty obligations, the bloc is not subject to any court process in the host country. This case brought a firm rebuke by SADC to Lesotho’s Foreign minister who was reminded of Lesotho’s obligations. Indeed this matter was dealt with by the Troika already referred to. Among other things, the “…Summit noted with great concern that the Commission of Inquiry has been taken to court, and mandated the Facilitator to expeditiously communicate the concern of SADC to the Kingdom of Lesotho”. This concern is couched in diplomatic language, but is a serious rebuke with implications for non-compliance.
Collapse of the rule of law
The 2015 elections in Lesotho have magnified the declining and/or collapse of the rule of law as we have known it. We need not emphasise that democracy cannot function in a situation where the rule of law has been undermined. Courts of law, rather than the executive branch of government, are the guardians of the freedoms citizens have. When everything else has failed, people in democratic societies know that the courts will determine the rights of citizens without fear or favour and government is obliged to implement such decisions. In Lesotho, this no longer happens to all. The powerful are above the law.
If anything, matters between Mareka and 22 others V the Commander of the Lesotho Defence Force; and that of Motseko V Commander of the Lesostho Defence Force illuminate the issues at hand. Several court decisions have been handed over in cases brought by detained soldiers, but almost all have been ignored. For one reason or another, the attempt has been made to circumvent the court rulings by seemingly releasing the soldiers and then immediately re-arresting them.
It is in these circumstances that international human rights organisations like Amnesty International have now launched a campaign on the lawlessness in Lesotho. In its alert, of 20, November 2015, Amnesty brings to the fore that some of the detained soldiers have been in detention since May and have been tortured and could face a death penalty in an unfair trial. It raises the fact that some of those detainees are held in solitary confinement which, in terms of international law, is regarded as torture. It is these same soldiers who have tried in vain to be released after the courts have ruled that they should be so released. The rule of law has clearly collapsed and the norms which SADC subscribes to don’t exist in Lesotho. Nothing helpful has been said by the Prime Minister in such a critical situation.
Issues arising after SADC Commission report
Among the most important reasons for setting up the Commission was the murder of Lt-Gen Mahao. In all constitutional states, whenever there is a crime, murder included, the matter is a straightforward police matter. Suspects are arrested and wait for their day in court later. It is only when defending themselves that suspects in court can raise whatever defence they have. But even those suspects cannot raise the question of following orders or an authorised operation. Nuremburg long dealt with that. In Lesotho, cases involving the military tend to disappear until there is conflict within the military establishment. We have seen those stretching to the 1980s. When a state therefore fails to protect its citizens, the outside world now has an obligation to intervene. It is on this basis also that the SADC Commission came to being. It was not an undue interference in the internal affairs of a state, but a way to “…defend and maintain democracy, peace, security and stability” in accordance with the objectives of SADC. It borders on the absurd to hear junior officers, who are not versed with international diplomacy, begin to talk about sovereignty on matters like this.
A related issue here is that the previous interventions of SADC in Lesotho were of an emergency nature. The 1994 intervention for example was to restore an overthrown government primarily and later also to restore the overthrown Monarch. All those emergency objectives were achieved. The 1998 mission was similar to the 1994 intervention, but used different intervention mechanisms. It also achieved its objective of restoring a collapsing government. The present intervention which, for all intents and purposes, is an extension of the 2014 mission is geared to find the individuals, in whatever position, who have been involved in the murder of Lt-Gen Mahao and also those who have been involved in destabilising the country. It is not a short-term mission but a mission to ensure accountability and thus indicate that solidarity is not unlimited.
Now that the Troika has dealt with the report, it is clear that structures for ensuring that the culprits are brought to book, have already been put in place or will be put in place at the earliest. I would not be surprised in the forthcoming Ramaphosa mission under the auspices of the Troika will be the last before tangible measures are taken to bring back Lesotho in the democratic ethos of the region.
The issues are clear. The Lesotho crisis is routed in the army which has now become superior to both the government and the courts in terms of its self-perception. No solution, therefore, would work unless it decisively deals with the lawless elements within the army. The government must accordingly not be deceived by uniformed experts who claim that it can withstand the decisions of SADC. Lesotho does not have the political and diplomatic capacity to withstand those of SADC. Militarily, we all know that Lesotho has no assets to write home about or to dent a SADC operation if it took place.
Professor Sejanamane is a lecturer in the Department of Political and Administrative Studies at the National University of Lesotho.