A BILL to grant members of the security sector a blanket amnesty for offences committed between January 2007 and December 2015 is unlikely to bring the peace and stability envisioned by the government without engaging stakeholders, analysts have said.
According to the analysts, a unilateral approach would not bring about the reconciliation needed to resolve Lesotho’s political challenges, since it would be perceived as just a way of protecting the government’s supporters from possible prosecution.
The Amnesty Bill, 2016, which is still being drafted by the government, is expected to be tabled in the National Assembly after it reconvenes on 11 November this year.
If tabled in the National Assembly in its current form by Defence and National Security Minister Tšeliso Mokhosi and passed into law by both the lower house and the Senate, the bill would see members of Lesotho Defence Force (LDF), Lesotho Mounted Police, National Security Service, Lesotho Correctional Service, government officials and “any other person” being granted amnesty for offences committed between January 2007 and December 2015.
The amnesty would extend to members of the LDF whom the Southern African Development Community (SADC) Commission of Inquiry into Lesotho’s instability had recommended should face prosecution.
The 10-member SADC Inquiry led by Botswana’s Justice Mpaphi Phumaphi was convened after the killing former army commander Maaparankoe Mahao. The former LDF chief was allegedly resisting arrest for suspected mutiny when he was killed by his colleagues outside his Mokema farm on 25 June 2015. However, the Mahao family and SADC inquiry have disputed that claim.
After the killing, Prime Minister Pakalitha Mosisili asked SADC to help establish the circumstances surrounding the tragedy with the inquiry carrying out its investigations between 31 August and 23 October 2015.
It made a number of recommendations, including the suspension of LDF officers implicated in cases of murder, attempted murder and treason while investigations into the allegations proceeded in line with international best practice.
The inquiry also recommended an amnesty for the 23 soldiers facing mutiny charges before the Court Martial. The soldiers were arrested between May and June 2015 for allegedly plotting to violently remove the LDF command. Seven of the soldiers have since been released from Maseru Maximum Security Prison and placed under open arrest, which is a form of bail in the military. The other 16 remain in detention.
Among the offences for which amnesty would be granted include high treason, sedition, subversion, murder, mutiny, other acts or omissions of violence against persons, malicious damage to property, kidnapping, desertion, incitement to commit a crime and contravention of the Internal Security Act. The draft law further provides that if found necessary and “satisfactory”, the Minister of Finance may make necessary compensation to aggrieved persons.
In the case of the detained soldiers and members of disciplined services, the bill states they would be released upon “coming into operation of this Act” and required to hand over “whatever military property may be in their possession” before being retired and given their terminal benefits. This also applies to members of the LDF and disciplined services exiled in South Africa.
However, for serving members of the LDF and disciplined services facing these charges, they would not only be granted amnesty but continue with their employment.
In its “Statement of Objects and Reasons of the Amnesty Act, 2016” the bill states it is meant to bring “lasting peace and tranquillity” in the country and to be a “tool for reconciliation and reconstruction”.
It is also meant to enable members of the disciplined force and services to “undertake their institutions’ constitutional mandate without any fear of persecution and prosecution”.
According to Lesotho Council of Non-Governmental Organisations (LCN) Executive Director Seabata Motsamai, while the Amnesty Bill, 2016 was a “good gesture or notion” the unilateralist approach by the government to such a delicate process “would render it unacceptable”.
“The premise of the bill is certainly a good gesture or notion. Indeed Lesotho is in dire need for reconciliation to bring about national healing,” he says.
“However, the government needs to reconsider its approach because it risks being perceived as only trying to advance its interests to the detriment of other groups affected by these issues.”
Mr Motsamai stresses the need for dialogue, saying the bill should be the outcome of a consultative process to ensure the views of all stakeholders are incorporated.
“Dialogue is key, because the victims and perpetrators should all be treated equally in the bill without any of the two groups being short-changed,” the LCN director notes.
“If the army intends to retire the detained and exiled soldiers, the only way to level the playing field is to retire all those soldiers implicated by the SADC Commission of Inquiry’s report.”
He adds: “Government, as an interested party, should realise that a unilateral imposition of such a law would not bring a durable and sustainable solution to the political and security crisis facing this country.
“In its current format, the law would fail in its stated objective of healing the wounds of the people affected by the security crisis. Ultimately, inclusivity matters.”
Echoing the sentiment, Transformation Resource Centre’s Programmes Manager Lenka Thamae, says public participation is a key component in coining reform policies.
“We have always advocated for public participation as a core value of the reform process. The question that begs a response from the government is whether the process of coming up with this bill was participatory or not,” says Mr Thamae.
“Our democracy is under siege and now is the time to engage each other and not to just dictate as the drafting of this bill amounts to.
He also notes that while the government was within its rights to promulgate laws, they should consult stakeholders as a gesture of goodwill.
“The issue is not about the right to make laws, but including others would be a gesture of good will. If they are sincerely trying to build a foundation for peace and stability, they should consult others,” Mr Thamae says.
“So there is an urgent need for this issue to be discussed openly. In its current form, and the manner it is being formulated, this bill is unacceptable.”
Describing the bill in its current form as “mischievous”, he says it promotes impunity by the perpetrators.
“We can’t accept the blanket amnesty proposed by the bill. In fact, it is mischievous because it promotes impunity. It should be formulated in the open through dialogue,” says Mr Thamae.
“While the TRC accepts the amnesty for suspected mutineers as recommended by the Phumaphi inquiry, the law should take its course on criminal activities perpetrated by some soldiers. The amnesty should not be broadened to criminal actions that include human rights violations.”
Chipping in, Attorney Tumisang Mosotho says the proposed amnesty law is not a new phenomenon in the history of Lesotho.
In 1986, he says, the General Amnesty Order was passed for the purpose of granting amnesty to perpetrators of political crimes committed from 1970 to 1986.
“That law dealt specifically with offenses of a political nature. It was for people who were sentenced and others who were liable for prosecution. The amnesty covered cases of high treason, sedition and mutiny,” says Attorney Mosotho.
“The law still had an indemnity clause stating that no civil or criminal charges could be brought against the state.”
He also notes that a similar law was passed in 1987 by the military regime to protect soldiers for acts committed from 15 January 1986 to 15 January 1988 called the Indemnity Order (1987).
“It was intended to protect against civil or criminal prosecution and it was meant for soldiers, police, government officials and the government. This was for acts committed while at work within the scope of their employment, defence of the Kingdom and suppression of mutiny.”
Attorney Mosotho says it is noteworthy that there was no constitution at the time and the laws could not be tested against the supreme law.
He says in 1996, Lesotho passed yet another amnesty law, known as the Pardons Act (1996) that granted amnesty for offences committed from 1 November 1993 to 31 December 1995 and for people illegally possessing firearms and ammunition.
Attorney Mosotho notes that the Pardons Act (1996) was effected after the establishment of a constitutional government in 1993.
“As a result, the law didn’t stop criminal and civil proceedings from taking place before the courts of law,” he says.
“The law related to political crimes only. However, the Amnesty Bill, 2016 seems to be intended to cover up and absolve people of crimes that were clear infringements on fundamental human rights. It appears to be meant to cover up murders and other such serious crimes.”
Attorney Mosotho also takes issue with the “superior treatment” given to serving soldiers compared to their detained and exiled counterparts.
“The bill shockingly proposes that the soldiers in detention and in exile would be granted amnesty and retired. Granting amnesty means you are turning a blind eye to what happened before,” he says.
“But this suggestion that they be retired is illogical. There is no basis for the discrimination in the bill and its proposals are contrary to the principles of an amnesty.
“If it is in the best interests of the army to retire them, then all the soldiers who would be affected by the amnesty law should be retired and not just a select few.”
Attorney Mosotho further argues the Amnesty Bill, 2016 would be unconstitutional in its current format.
“It will not stand the constitutional test because it unjustifiably encroaches on people’s constitutional rights,” he says.
“It would only amount to a temporal relief for those who have committed crimes and it would be attacked by all sectors of society and even challenged in court.”