Prime Minister Pakalitha Mosisili on Monday told parliament that the government had decided to “engage” army commander Lieutenant-General Tlali Kamoli “on a mutually agreeable solution” regarding his future in the Lesotho Defence Force (LDF) but lashed out at the Southern African Development Community (SADC) Commission of Inquiry which recommended his dismissal.
Dr Mosisili said the government had “heard the national and international agitations and submissions fuelled by a very strong negative perception that has been created around General Kamoli” hence its decision to talk to the LDF chief.
A “definitive statement” on the outcome of the discussions, he added, would be made in due course.
However, the prime minister, who was giving government’s position on the Commission’s report following its investigation into the death of former LDF commander Maaparankoe Mahao, was highly critical of some of its findings and recommendations.
Dr Mosisili asked SADC for help in probing the fatal shooting of Lt-Gen Mahao by his military colleagues on 25 June 2015, resulting in the establishment of the Commission of Inquiry led by Botswana judge, Justice Mpaphi Phumaphi. The investigation took place between 31 August and 23 October 2015 and Dr Mosisili tabled the Commission’s report before parliament on 8 February 2016.
He indicated that the government would study the report and pronounce its response in due course, which he did in the august House this week.
In his response, Dr Mosisili first gave a background of why the Commission was established before outlining how it conducted its investigation.
The Commission, he noted, committed to follow United Nations Guidance and Practice of Commissions of Inquiry and Fact-Finding Missions on International Human Rights and Humanitarian Law principles, which it however, did not follow to the letter.
The principles, he said, included taking into account the witness’ political and personal interests, potential bias and past record of reliability; the witness’ apparent capacity to correctly recall events considering his/her age and how far back the events occurred; where and how the witness obtained the information and the reasons for which the witness provides the information.
“Sadly, however, the Commission has, in practice, tended to flout both the spirit and substance of these and other fundamental principles of investigation,” Dr Mosisili said.
The prime minister cites several instances in which he says the Commission did not adhere to these doctrines.
“The report neither lists nor describes the witnesses who appeared before the Commission,” he said. “No attempt was made to categorize these witnesses into those who were summoned by the Commission and those who volunteered, or those who gave evidence in public and those who preferred to make their submissions in camera. It is a standard procedure for any document that claims to have collected information to say where and how such information was collected. This makes not only for transparency and credibility of the process, but more importantly, it gives authenticity to the findings.”
Some witnesses, he said, were not cross-examined, “yet their evidence has been used to arrive at important conclusions” that form the basis for some recommendations.
“The best example here is that of former Commissioner of Police, Mr Khothatso Tšooana, whose evidence has clearly been treated as important in the report, seeing recommendation 138 (b) on page 60 which emanates from it.”
LDF officers implicated in cases of murder, attempted murder and treason were not given an opportunity to give their side of the story by the Commission, he also said.
“These officers, suspected of such heinous crimes, were never given the opportunity to present their side of the story before the Commission in line with the audi alteram partem principle. Yet the Commission goes on to make the recommendation that they should be suspended while investigations in their cases are proceeding. As indicated, the witness who provided this information was not even cross-examined.”
Dr Mosisili also took issue with the Commission’s failure to test the credibility of witnesses.
“In paragraph 109 on page 48, the report says that Mr Machesetsa Mofomobe, a well-known Basotho National Party (BNP) civilian activist and member of the BNP Executive Committee, testified before the Commission that, ‘… he was told that on the 14th October 2014 at a military parade Brigadier Mokaloba informed the parade that Brigadier Mahao wanted to infiltrate the army together with the witness and one Corporal Mofomobe, a member of LDF Military Intelligence,” Dr Mosisili said.
“This is a classic case of hearsay. As indicated, according to international best practice, the Commission was bound to establish ‘the witness’ political and personal interest and potential bias …; where and how the witness obtained information; and the reasons for which the witness provides information’. All these were not done. Yet the Commission has used this submission very strongly against General Kamoli. This exemplifies in the extreme a case in which the Commission lacked vigilance, thereby seriously compromising the quality of its work.”
Another “totally false” submission given to the Commission “with the intention of tarnishing the image of General Kamoli” he said, was when the Commission alleged “the General appeared in bad light in 2007 by being linked to the infamous Operation Pitika where certain politicians especially of the opposition were made to roll on the ground as punishment.”
Dr Mosisili said Lt-Gen Kamoli was not present at that road-block, and had nothing to do with it.
“Moreover, no opposition politicians were made to roll in that operation. In fact, SADC investigations at that time revealed that on the contrary, it was the army that was under attack by rogue elements from the opposition. The point is that the Commission did not make any effort to verify evidence brought before it,” he said.
Dr Mosisili also pointed out some flaws in the Commission’s findings, starting with the alleged mutiny plot in the LDF, which resulted in the fatal shooting of Lt-Gen Mahao, allegedly while resisting arrest for being the ringleader of the rebellion. Twenty-three LDF members accused of being part of the foiled mutiny plot are being tried before a Court Martial.
The premier said: “In the case of mutiny, the Phumaphi Report says, ‘Evidence before the Commission in respect of the mutiny is that the alleged mutineers intended to kill 13 members of the LDF. Further, it shows that some of the complainants in the Court Martial participated in the arrest of the suspects, which is a clear conflict situation as they have personal interest in the cases. When this evidence is taken into consideration with that of the suspects subjected to torture, the object being to extract confessions from them, as well as the evidence that Lt-General Kamoli himself, when he was reappointed as Commander of the LDF (in May 2015), stated that he would deal with those who celebrated his termination in 2014, it makes the whole case of munity highly suspect”.
“It is clear from the report that the Commission heard evidence from many LDF officers who testified about the existence of the mutiny plot. On the other hand, the only witness being used in the report to give the opposing impression is Lance-Corporal Lefoka, who testified that he had been tortured to admit that a certain Lieutenant Colonel was involved in the plot. It is important to note that Lance-Corporal Lefoka does not deny the existence of the plot. His point is that he was tortured to implicate someone else. In the end, there is nobody who is denying the existence of the mutiny plot. Moreover, these mutiny suspects challenged their detention in court, and on 29 April 2016, the Court of Appeal ruled that indeed, there is a case to answer on the mutiny plot. Yet quite strangely, the Commission finds reason to conclude that the whole case of mutiny is ‘highly suspect’.”
Dr Mosisili also said government was happy that the Commission had found no evidence of any kidnapping of former LDF members and the killing of opposition supporters.
“The Commission came to the conclusion that there were no kidnappings. The Commission also says allegations relating to the killings of members of the opposition were unfounded. To us in government, these are very important findings. It will be recalled that at that material time, rumor was rife that the Government of Lesotho was sponsoring systematic killings of members of the opposition. It was very difficult to dispel these rumours because they were supported not only by the opposition, but also the media and our civil society,” he said.
Dr Mosisili also spoke about the Commission’s findings into allegations by the opposition and civil society stakeholders that Lt-Gen Kamoli’s reappointment as army commander in May 2015 had resulted in divisions in the LDF, and led to political and security instability.
“Lieutenant-General Kamoli was reappointed to the Office of Commander on 21st May 2015 through Legal Notice N0. 61 of 2015. Reading the report, it is clear that the Commission strongly supports this allegation by the opposition and civil society that his appointment resulted in divisions in the LDF. However, all evidence advanced to support this allegation relates to things that happened before the 21st of May when Lieutenant-General Kamoli was appointed,” he said.
“In paragraph 110 on page 48, it says, ‘The signs of division were observed long before the removal of Lieutenant General Kamoli and the appointment of Brigadier Maaparankoe Mahao’. It continues in paragraph 111, page 48 to say, ‘The division became even more evident after the removal and appointment of Lieutenant General Kamoli and Brigadier Maaparankoe Mahao respectively’. Clearly these submissions have nothing to do with the time after General Kamoli was reappointed. It is worth noting that there is only one witness, Mr Machesetsa Mofomobe, who is said to have testified to these divisions. General Kamoli also appeared before the Commission and testified in his defence on this matter, but there is no reference whatsoever to his testimony.”
The prime minister also spoke about political instability the Commission investigated.
“With regard to the issue of political instability, the Commission, in a similar manner as in the case above, mentions many things that happened before the reappointment of General Kamoli. The only instance where there seems to appear a modicum of relevance is in paragraph 118 on page 50, where the report says, ‘Just after the reappointment of Lieutenant-General Kamoli, three opposition leaders fled to South Africa (former Prime Minister and current Leader of Opposition in Parliament Dr. Thomas Thabane, BNP Leader Chief Maseribane and RCL leader Keketso Rantsho (sic)). They stated that they feared for their lives because they believed Lieutenant-General Kamoli would be vengeful for his earlier dismissal’.
“It must be pointed out that the Phumaphi Commission is the only entity that gives credence to this perception of the Opposition Leaders fleeing from General Kamoli. Before this report was published, these Leaders of the Opposition were agreeable to the idea of coming back home to Lesotho if they were provided with police bodyguards. The Leader of Opposition and I signed a Memorandum of Agreement to this effect. But after this report was published, they are now adamant that they will only come home if General Kamoli is removed.
“The truth is that these leaders did not flee in fear of General Kamoli. The sequence of events alone will suffice to expose this fallacy. The former Prime Minister and the Leader of the BNP fled to South Africa on 18th and 20th May 2015 respectively, following the arrests of many mutiny suspects.
“General Kamoli was only reinstated later, on 21st May 2015. That is, they fled before he was reinstated. Also in their media statements at the time, these leaders never mentioned General Kamoli as their reason for fleeing. So the truth is that they were not fleeing from General Kamoli. If the Commission had taken the trouble to establish this sequence of events, it would have uncovered this fallacy,” Dr Mosisili said.
The opposition leaders, he added, only sought refuge in South Africa to further their political agenda.
“These leaders live in South Africa in order to achieve their own political ends. It is clear that if they come home, they will become ordinary backbenchers, thereby losing the attention of the international community. The only way to continue to attract this attention is to stay in exile. In other words, they have a stronger political voice when they are in exile. The point is that they have found in the report of this Commission, ostensibly credible grounds for their continued self-exile. This is regrettable,” he said.
On the issue of security instability, Dr Mosisili said there was nothing to prove that Lt-Gen Kamoli’s reappointment led to the country’s insecurity.
“In paragraph 116 page 50, the Commission said ‘the reappointment of Lieutenant-General Kamoli was preceded by grave political and security instabilities that besieged the Kingdom of Lesotho during the reign of Dr T Thabane. The instabilities reached a crescendo when the then Prime Minister removed Lieutenant-General Kamoli and appointed Brigadier Mahao as LDF Commander. That spelt the collapse of former Prime Minister Thabane’s Coalition government and resulted in brought-forward election negotiated through a SADC intervention’.
“Contrary to the Commission’s view above, the real reasons for the collapse of former Prime Minister Thabane’s Coalition government were of a c and parliamentary nature. They had nothing to do with the removal and/or appointment of the LDF Commander.”
On the Commission’d recommendations, Dr Mosisili said: “The Phumaphi Report makes five recommendations. In order to make for a logical sequence of my presentation under this heading, I have arranged my discussion of these recommendations in an order that is different from the one in the report. It is as follows: Amnesty for Mutiny Suspects; Constitutional Reform; Criminal Investigations on the Death of Brigadier Mahao; Suspensions for LDF Officers; Removal of Lieutenant-General Kamoli as LDF Commander.
“In connection with the matter of amnesty for the mutiny suspects, it would seem that the Commission is inclined to deny the very existence of a mutiny plot, arriving at the conclusion that the whole case of mutiny is ‘highly suspect’. However, as indicated, the highest court of Lesotho ruled that in fact, there is a case to answer on the mutiny plot. Be that as it may, the Commission makes its recommendation on this matter as follows, ‘In these circumstances, we recommend a facilitation of an amnesty that will cover the detained mutiny suspects and ensure the safe return of all members of the LDF who have fled Lesotho in fear for their lives’. As indicated above, the basis for this recommendation is very shaky. However, the idea of an amnesty is quite attractive. Conceived properly, its basic intention is to create conditions for peace and stability. It seeks to bring closure to a preoccupation with recriminations and counter-recriminations, and paves the way to reconciliation and healing. It aims to bring both the minds and the hearts of warring factions together, paving the way to a new and constructive engagement.
“Its effect is to bring an end to destructive scramble and create new hope, thereby unleashing positive energy.”
However, the “glaring weakness” of this recommendation, he said, was that “it proposes pardon for one side of the divide, and anguish for the other; amnesty for those suspected of munity, and suspensions for those suspected of murder and treason.”
This, he said, would be “insensitive and unwise” , adding government felt “a wide application of this recommendation in the form of a general amnesty that covers all these officers would go some distance in paving the way to lasting peace and tranquility.”
But he warns of the possible consequences of such a pardon.
“It must be noted that normally the basis of an amnesty is full disclosure, and that care must be exercised that the grant of amnesty does not engender impunity in the disciplined forces. This is all the more so when the Court of Appeal has determined that the officers for whom the Commission recommends amnesty, in fact, do have a case to answer. The view to let the law take its course and the accused have their day in court is equally quite compelling,” he said.
On the issue of reforms, Dr Mosisili said the process had already started.
“In September 2015, government submitted a request to the UNDP in Lesotho for an expert in Dialogue and Consensus Building in the area of Constitutional Reform. In November work started under the auspices of the Cabinet Sub-Committee on the Constitution with support from an additional expert in constitution building, also provided by the UNDP,” he noted.
“This process has resulted in two documents. The first one articulates steps that will be followed in building a new constitution for Lesotho, which by the way, will be the first constitution in which Basotho are fully involved in its making through a referendum. The second document details strategies that will be used to approach all stakeholders to lobby them for their full participation in making the Constitution. Both of these documents have detailed Gantt charts that indicate precisely when activities will commence, and when they are expected to be completed. The first document has already been shared with the SADC Secretariat. It is expected that the official launch will be in July 2016; and that depending on how consultations with stakeholders go, the constitution building process will start in November 2016.”
On the shooting of Lt-Gen Mahao, the prime minister said the government supported the recommendation that it should facilitate criminal investigations into the killing.
“Government wholly supports this recommendation, not only because it is recommended by the Commission, but more importantly because it is the right thing to do in pursuance of the rule of law,” he said.
“Having said that, I wish to indicate that the issue of investigation in Lesotho is guided by a time-tested international procedure. The police make comprehensive investigations. They pass their findings to the prosecuting authority, which in Lesotho, is the Director of Public Prosecutions (DPP). The DPP examines these findings to determine whether or not there is a case. If there is a case, he pursues such a case in the courts of law, and the law follows its course. In this case, government has already submitted the Phumaphi Report, together with the Report of the Pathologist, to the police. The police have started with their investigations. It is expected that the procedure described above will be followed to its logical conclusion. The importance of prompt and decisive action on this matter has been duly communicated to both the DPP and the police authorities.”
Dr Mosisili however, said the government was “uneasy” regarding recommendations that LDF officers implicated in crimes should be suspended while investigations into the allegations are taking place.
“I must inform this Honourable House that government is quite uneasy about this recommendation. It is based on incidents that happened long before the death of Brigadier Mahao, a time that is outside the mandate of the Commission. It is based on the testimony of a witness who was not cross-examined. More importantly, these officers were not given the opportunity to present their side of the story in line with the audi alteram partem principle of natural justice. Moreover, there is a serious element of bias if this group is to be suspended and investigated, while an amnesty is being extended to the other group who, for all intents and purposes, they perceive as their rivals. All in all, it seems uncomfortably controversial. It certainly has the potential to cause a lot of justified stir and agitation both inside and outside the armed forces,” he said.
“As a result of the above considerations, government is inclined to include these officers in a general amnesty that covers those suspected of mutiny and those implicated in cases of murder, attempted murder and treason. An amnesty is always controversial. But government feels that this may be the best thing to do in these circumstances. All that remains is for government to enter into appropriate consultations and work out modalities, including administrative and legislative arrangements and procedures.”
On the removal of Lt-Gen Kamoli as army commander, Dr Mosisili said the government doubts his dismissal would “cure” the alleged problems in the LDF, but would still engage him on the issue.
“In connection with Lieutenant-General Tlali Kennedy Kamoli, the Commission says, ‘The general discontent of some Basotho with the Commander of LDF, Lieutenant-General Kamoli and the conduct of the LDF under his command is disconcerting. In the interest of restoring trust and acceptance of the LDF to the Basotho nation, it is strongly recommended that Lieutenant-General Kamoli be relieved of his duties as Commander LDF, and all LDF officers implicated in cases of murder, attempted murder and treason be suspended while investigations in their cases proceed in line with international best practice.’
“This august House will note that I have dealt conclusively with the issue of officers implicated in crimes,’ he said.
“The issue of relieving Lieutenant-General Tlali Kennedy Kamoli of his duties as Commander of the LDF is, by far, the most contentious and problematic of all the recommendations of this Commission. There are two reasons for this. First, and as indicated earlier in this statement, the reasons advanced to motivate this recommendation are highly controversial and most unconvincing. Many of them are plain untruths. In other words, in the opinion of government, this really is a very big recommendation chasing very little empirical evidence. Government is convinced that in spite of the fervent and highly spirited campaign to demonize and tarnish his image, General Kamoli remains a competent, dedicated and loyal soldier whose credentials are unquestionable. So it is not obvious to us that removing him is actually in the best interest of our country.
“Second, General Kamoli is only part of the general command of the LDF, albeit its head. He is not the LDF. Government deeply doubts this thinking that the removal of one person will have the effect of curing all the alleged ills of the LDF. This is why Government would much prefer a security reform as opposed to a once-off approach that targets individuals.
“Be that as it may, government has heard the national and international agitations and submissions, fuelled by a very strong negative perception that has been created around General Kamoli. In the light of this, Government has decided to engage General Kamoli on a mutually agreeable solution; and a definitive statement will be made in good time, following due process in this regard.”
Dr Mosisili also reiterated government’s “strong resolve” to implement the Commission’s recommendations.
“There is a strong resolve on the part of government to implement the recommendations of this Commission. There is solid progress with regard to constitutional reform. In a similar vein, to kick-start the process of security reform, government has sought and received assistance from SADC to facilitate technical work on Security Sector Reform. Government hopes to make significant progress on all the others in due course,” he said.