. . . as army pushes for removal of three terms of reference
Lekhetho Ntsukunyane
THE Southern African Development Community (SADC) Commission of Inquiry into Lesotho’s instability has rejected a last minute request by the Lesotho Defence Force (LDF) to alter its terms of reference and avoid dealing with three items the army is not happy with.
The LDF had asked for legal representation at the inquiry as well as being treated as an institution without individual members being singled out. It also wants all the witnesses to be interviewed publicly and the commission to avoid dealing with the issue of the mutiny.
The nine-member team appointed by SADC to investigate circumstances surrounding the assassination of former Lesotho Defence Force (LDF) Commander Maaparankoe Mahao finally began its inquiry in Maseru on Monday after what appeared to be a protracted delay.
The head of the commission, Justice Mpathi Phumaphi, started off by addressing the LDF’s application, which was made by its advocate general, Colonel Bulane Andrew Sechele. In the application, the army requested legal representation during the inquiries, arguing that “it is common course (sic) that (the) LDF is a legal person”.
“It is our humble submission that legal representation in this regard would largely assist the commission to reach a balanced analysis on the facts to be presented,” said Colonel Sechele.
“It is our considered view that it would be imperatively important for us to be afforded a chance to challenge (under cross-examination) any piece of fact stated against the LDF.”
The army also asked the commission not to give any witnesses the option to testify in camera, arguing that, because of the political situation, “some people are able to publicly state unfounded allegations against the LDF”.
“. . . in this regard, they might hide behind the issue of being afforded an opportunity to present their evidence in camera without any justification as required by the law as indicated,” the LDF said.
Colonel Sechele also called on the commission to omit its inquiry into the alleged mutiny within the LDF, arguing that it would be dealing with the same “subject matter’ as the court martial whose preliminary hearings would be held from 14 to 18 September 2015.
“It is common cause that the two bodies are creatures of the law duly required to be interdependent in carrying out their mandate,” he said.
“In determining the issues before them, they use different standards of proof. The commission uses balance of probability while the court martial uses proof beyond reasonable doubt.”
Colonel Sechele argued that the two bodies “might come to different findings on this issue of mutiny”.
“(This is) a matter which we respectfully believe may not be an intended one. And a matter which will bring everlasting uncertainty on the part of the accused/detained persons,” he said.
The advocate general said the prosecution and defence in the Court Martial would suffer “irreparable prejudice” should both processes run concurrently.
He suggested that the commission could wait for the Court Martial to deal with the alleged LDF mutiny and then proceed thereafter. However, Col Sechele then argued that it was not feasible saying: “Our humble submission is that the time frame given to the commission is obviously too limited for such consideration.
“Besides, we reiterate that the two bodies might make two contradicting findings, a result which none of the two would appreciate but to the detriment of mainly the accused/detained person.”
Col Sechele went on to warn that if their submission was dismissed, the LDF would not cooperate on the issue of the mutiny with the commission.
“We would not, with greatest respect, lead any evidence pertaining to the issue of mutiny before the commission on the fear of the stated observations and submissions above,” he said.
He asked the commission to probe the army’s conduct as an institution and not look into the criminal liability of individual officers. This is despite the government issuing a gazette dated 21 August 2015 highlighting that Brigadier Mahao’s killers should be held accountable for their actions.
“The Commission will assist in the identification of any perpetrators with a view to ensuring accountability for those responsible for the death of Brigadier Mahao,” reads the gazette.
“The Commission will also investigate whether security forces used excessive force when apprehending Brigadier Mahao, the immediate circumstances leading to his death and those around his admission to hospital.”
However, Col Sechele submitted that: “Our humble understanding is that, historically and practically, commissions of this nature are meant to look into the conduct of the institutions, in this regard LDF, not individuals.
“To do otherwise, we submit, might appear as if the domestic institutions created to look into the criminal liability of the individuals are being unnecessarily undermined.”
As a “pertinent” example, he referred to the case of the wildcat strike by miners in Marikana, South Africa.
“. . . His Lordship (Judge Ian Gordon) Farlam (chairperson of the Marikana Commission) was never invited to assist in the identification of any police officers who had been the actual people who pulled the triggers in that incident which led to the deaths of approximately 44 people,” Col Sechele said.
“Similar to our case, that was an authorised operation but of which it has never been the intention of those in authority that death would ensue, similar to that incident of Marikana. In this regard, therefore, we humbly pray that criminal liability of any individual member in our case be left in the hands of the domestic entities.”
He also warned that if the LDF’s submission was not upheld, they would “not be ready to incriminate any of our members”.
“Our submission is founded on the right against self-incrimination,” said Col Sechele.
However, the commission shot down the LDF’s application on grounds that it was “unmeritorious”. In his response on the issue of witnesses, Justice Phumaphi said the commission had the final discretion on whether they can testify in public or in camera “after satisfying itself that there are reasonable grounds”.
“The invitation of the witnesses to indicate whether they want to give evidence in public or in camera is to ensure that they know that the option is available in terms of the (Public Enquiries) Act,” said Justice Phumaphi.
This was particularly pertinent in this inquiry, he noted, because some of the possible witnesses were in custody.
“As a matter of fact, one of the witnesses listed in the list of the LDF witnesses, has indicated his desire to give evidence in camera,” Justice Phumaphi said.
“The Commission is yet to hear his reasons, and if it is satisfied that there are good reasons why he should testify in camera so it shall be. The same shall go for any other witness who has reason to feel that he/she has to give evidence in camera.”
On the army’s request for the commission to avoid dealing with the alleged mutiny, Justice Phumaphi said there appeared to be a deliberate delay in facilitating the start of commission’s work, “until such time it was decided to proceed with the court martial”.
“It therefore follows that the contemporaneity of proceedings of the commission and the court martial was a result of the decision to start courts martial, whilst at the same time it was clear that a legitimate inquiry was going on, dealing inter alia, with what the court martial would be dealing with,” said Justice Phumaphi.
“In the result, we find that the dilemma of both the commission and the court martial running parallel is self-created by government and therefore the submissions are dismissed as unmeritorious.”
The LDF’s recourse, he said, would be the chair of organ on Politics, Defence, and Security Cooperation, Mozambique President Filipe Nyusi, who had the authority to leave out the three terms of reference.
“It is to be noted that the government of Lesotho, through legal notice No. 88 of 2015, gazetted terms of reference for the commission and it is by those terms that the commission shall operate,” Justice Phumaphi said.
“In any event, every commission does its work according to its terms of reference.”
On the issue of probing the LDF as an institution, he said there was no way the army could be investigated regarding the slaying of its former head without investigating the conduct of those who were detailed to arrest him. He said the LDF could only act through its agents “who normally are its employees”.
“It therefore, follows that, its liability vicarious or otherwise, must derive of necessity, from the actions of its employees or other agents,” Justice Phumaphi said.
“As a corollary to the aforegoing, an investigation of the LDF, ipso facto entails an investigation of the actions of its agents. In the circumstances, there is no way the LDF can be investigated concerning the death of Brigadier Mahao without investigating the conduct of those who were detailed to arrest him.”
