- as it lays groundwork for a National Peace and Unity Commission,
- but victims’ families fiercely oppose the move.
Herbert Moyo |’Marafaele Mohloboli
FREEDOM beckons for politicians Mothetjoa Metsing, Selibe Mochoboroane, former army commander Tlali Kamoli and other high-profile criminal suspects.
Their criminal trials, currently before foreign judges in the High Court, could be suspended in favour of them appearing before a soon-to-be-established National Peace and Unity Commission empowered to grant them amnesty provided they testify truthfully, disclose their crimes in full and show remorse.
The decision to press ahead with the Commission recommended by SADC is being met with fierce resistance from victims of crimes who have already hinted they may challenge it in court. They see it as a ruse to free a band of criminals who committed heinous crimes including maiming and dumping the bodies of their victims in dams.
The Commission is set to be created after the Moeketsi Majoro administration gave in to demands by the head of the SADC facilitation team to Lesotho, retired former South African Deputy Chief Justice Dikgang Moseneke, for its establishment among other measures to expedite the completion of the multi-sector reforms recommended by the regional body in 2016 to foster durable peace and stability in Lesotho. The Commission, if approved by parliament, will among other things hear testimony and consider pardoning high profile criminal suspects presently in court for a range of serious crimes including murder and treason.
The Commission will also consider awarding compensation to victims of the various crimes. But in a boon for the perpetrators of the crimes, they will not have to pay a penny as the state will foot the compensation bills.
Justice Moseneke had proposed that the commission be called the Transitional Justice Commission (TJC).
However, it has been christened the National Peace and Unity Commission in a new bill drafted by Acting Justice and Law Minister Lekhetho Rakuoane and circulated to MPs this week.
The bill was crafted after the government caved in to Justice Moseneke’s threats of unspecified measures against it if it delays implementing the multi-sector reforms. Justice Moseneke’s threats are a clear signal that SADC has lost patience with Lesotho. It wants the reforms completed soonest in the next few months.
Victims of crimes vehemently disagrees with Justice Moseneke’s viewpoint that for the reforms to be expedited, current criminal trials must be deferred.
Former Justice and Law Minister, Nqosa Mahao, himself a victim after the killing of his brother, Maaparankoe, by lawless soldiers in 2015, has openly opposed the establishment of such a commission saying Lesotho’s circumstances did not justify it. Lesotho was not emerging from a deadly conflict like a brutal civil war or military junta rule requiring transitional justice. The atrocities in Lesotho had been committed by a band of criminals who abused their power in the army and should be left to face the full wrath of the law, Professor Mahao has argued.
Before his firing last month, Prof Mahao himself had spurned drafting the bill that has now been hurriedly put to life by Advocate Rakuoane.
The enthusiasm of Adv Rakuoane, who leads the Popular Front for Democracy (PFD) party, in hastily cobbling the bill is also likely to draw the ire of victims as he was part of the Pakalitha Mosisili-led coalition under which the heinous atrocities were committed between 2015 and 2017.
The proposed National Peace and Unity Commission shall comprise of four members appointed by the prime minister on the recommendation of a selection panel. It will be empowered to hear “evidence” from suspects accused of politically motivated crimes and gross human rights violations including those whose cases are already before the courts.
But the suspects like Lt-Gen Kamoli, Messrs Metsing, Mochoboroane and others would have to first apply to appear before the Commission. Their court trials will then be suspended pending the decision of the Commission if it agrees to hear their pleas. If they are granted amnesty, their trials would be completely halted and they would be set free.
Prof Mahao reiterated yesterday the bill was unconstitutional as it sought to usurp the Director of Public Prosecutions (DPP)’s sole constitutional prerogative to determine criminal prosecutions.
The bill states that any person who is investigated or charged in the courts of law for gross human rights violations may apply to be heard before the Commission.
“The Commission may consider applications of persons in custody and…where an application of a person who is charged has been accepted by the Commission, a pending case may be halted by the court to await the outcome of the hearing at the Commission.
“Having heard evidence tendered by the alleged perpetrator, the Commission shall inform itself whether the person has testified truthfully and in full, and in doing so the Commission shall weigh the evidence of the perpetrator alongside that of the alleged victim and any other available evidence, including evidence in the possession of the police or any other state organ.
“The Commission may grant amnesty where – (a) It is satisfied that the witness testified truthfully and in full; (b) The nature and manner of carrying out the violation was not grossly inhumane; and (c) the witness has shown remorse and has undertaken not to commit the act again.”
In the event that the Commission has not granted amnesty, the suspect’s trial, which would have been suspended while it considers their case, will resume in the courts of law.
As a sop to the victims of the gross human rights violations, the Commission will also determine “fair reparations” to be paid to the victim within six months of the hearing of a case.
As pointed out by one lawyer who spoke on condition of anonymity for professional reasons, the Commission is a boon to perpetrators of human rights violations as it not only creates a leeway for them to escape criminal liability but also relieves them of the obligation to pay compensation to their victims. That responsibility will now be borne by the government.
The proposed Commission is seen as a slap in the face of victims of various crimes who had opposed its establishment in a 21 April 2021 meeting with then Justice and Law Minister, Pro Mahao. The Lesotho Times this week learnt that the meeting took place at the Transformation Resource Centre (TRC) offices in Maseru. It happened as Justice Moseneke was vigorously pushing for the establishment of what he termed the transitional justice commission.
In that closed meeting, various victims, including the widow of the slain army commander Lt-Gen Maaparankoe Mahao, vehemently opposed the establishment of the Commission.
In a subsequent 21 May 2021 letter to Adv Rakuoane, after Prof Mahao’s firing, TRC Director Tsikoane Peshoane made it categorically clear that the victims of crimes were “generally oppose” to the establishment of such a transitional justice commission.
However, if the government persisted in establishing one, Mr Peshoane listed the victims proposed input into any legislation giving life to the commission;
- the Commission should not interfere with prosecutions already in court
- victims should be awarded reparations within six months
- soldiers (accused of human rights violations) still at work should be charged
- all soldiers (accused of human rights violations), should have their assets seized to compensate their victims
- politicians (accused of human rights violations) should be prohibited from assuming any public office in future
- all proceedings of the Commission should be transparent and its recommendations gazetted to give them binding force
- The TRC should be approached by the (Justice and Law) ministry to assist in facilitating a final round of invitations to the victims for their final input into any drafted bill before it heads to parliament.
- The Minister of Justice and Law should work with the facilitator (Moseneke) to ensure that their (victims’) suggestions are not removed and undermined by the politicians.
Mr Peshoane’s letter is copied to Prime Minister Majoro, Justice Moseneke, the United States Ambassador to Lesotho Rebecca Gonzales and the United Nations Commission of Human Rights.
It appears the government did not take into consideration any of the suggestions of the victims.
In a letter dated 19 April 2021 to Prime Minister Majoro, but which only leaked this week, Justice Moseneke made it clear that SADC would no longer brook any delays in completing the reforms.
The letter is titled “The reform process and the pressing need to conclude them within the set deadline”.
In a scathing tone which abandons all pretence at diplomatic etiquette, Justice Moseneke informs Dr Majoro that “the SADC facilitation team is becoming increasingly concerned about the slow pace of the reform process”.
“Our anxiety is informed by the potential risks to the pressing need for Basotho to enact the reforms they have already decided upon during an inclusive and democratic process that culminated at the final plenary meeting of all stakeholders. In our last visit to Lesotho, we expressed this anxiety when debriefing the government…”
Justice Moseneke states that his facilitation team had honoured a request from the Lesotho government by drafting and presenting a discussion document on the establishment of a ‘Transitional Justice Commission’.
Justice Moseneke views the establishment of the Commission to defer all high-profile trials including those of Messrs Metsing, Mochoboroane and Lt-Gen Kamoli as a necessary precondition for expediting and completing the reforms process. Messrs Metsing and Mochoboroane had vowed not to participate in the reforms if the state persisted in charging them.
Justice Moseneke has vigorously pushed for the deferment of their trials until after the completion of the reforms process.
He accuses the government of failing to enact a law to defer their trials in line with clause 10 of an October 2018 SADC brokered agreement between the government of Lesotho and opposition parties.
Clause 10 of that agreement specifically stated that “Mr Metsing and similarly placed persons in exile will not be subjected to any pending criminal proceedings during the dialogue and reforms process”.
The agreement had paved the way for Mr Metsing and some other opposition politicians’ to return from their brief exiles to participate in the reforms process. They had fled into exile fearing reprisals from the Thomas Thabane coalition which was swept into power in the 3 June 2017 snap elections. However, Clause 10 was invalidated in November 2018 by the Constitutional Court bench comprising of then Acting Chief Justice ‘Maseforo Mahase, Justices Molefi Makara and Semapo Peete (now retired).
This after the late Police Constable (PC) Mokalekale Khetheng’s father, Thabo Khetheng, petitioned the court to declare it unconstitutional saying self-serving agreements between politicians could not outstrip the constitution.
PC Khetheng was allegedly murdered by fellow police officers on 26 March 2016 at the height of infractions by security agencies.
Mr Khetheng’s successful 2018 court challenge also cleared the way for Messrs Metsing and Mochoboroane to be charged with treason in connection with the 30 August 2014 attempted coup against the first government of former Prime Minister Thabane.
The duo is now charged alongside Lt-Gen Kamoli and an army officer, Captain Litekanyo Nyakane over their alleged role in the coup.
But their trial was put on hold on 25 February 2020 after Messrs Metsing and Mochoboroane petitioned the Constitutional Court to rescind its November 2018 judgement nullifying Clause 10.
Their application was again heard by Justices Mahase, Peete and Makara who upheld their November 2018 invalidating the Clause and clearing the way for them to be prosecuted.
This despite a spirited push by Justice Moseneke to have the government halt the trials. Justice Moseneke now accuses the Lesotho government of not having done enough to protect Clause 10 in the courts.
Justice Moseneke had on 29 March 2020 penned a letter to then Prime Minister Thabane, saying SADC was against the plans to prosecute Messrs Metsing and Mochoboroane.
In obiter dicta (incidental) statements while dealing with the application by Messrs Metsing and Mochoboroane to stop their trials, the Constitutional Court bench had said Lesotho was a sovereign country and any proposal by SADC could only become binding if it was first domesticated into the country’s municipal law through an act of parliament.
Following the dismissal of their appeal by the Constitutional Court last November, Messrs Metsing and Mochoboroane appealed to the Court of Appeal which also threw out their appeal last month.
This leaves the establishment of the proposed National Peace and Unity Commission as their only hope for freedom. But that too is not guaranteed as Prof Mahao, a legal scholar, is adamant that the proposed Commission cannot outstrip the DPP’s powers to determine criminal prosecutions. If the families of the victims decide to take the latest bill on review, it means the reforms process will further stall unless the government decides to press ahead regardless of any other factors.
In his latest letter to Dr Majoro, Justice Moseneke accuses the government of failing to defend Clause 10 in court. He accuses Dr Majoro and co of selfishness, saying they only make serious political decisions when their own interests are at stake.
He cites last year’s hurried enactment of the 9th constitutional amendment to force a prime minister to step down after losing a no confidence vote instead of dissolving parliament as an example of the current political leaders’ selfishness. The passing of that constitutional amendment facilitated the ouster of then Prime Minister Thabane and his replacement by Dr Majoro. The resolve and zeal with which that amendment, also engineered by Adv Rakuoane, was passed is solely missing in enacting measures to complete the reforms, laments Justice Moseneke.
Justice Moseneke states that an inordinate amount of resources have already been spent by SADC, the European Union (EU) and the United Nations Development Programme (UNDP) to assist Lesotho complete its reforms process. These resources would have been better deployed in areas of more serous conflict such as Mozambique which is currently experiencing a wave of Islamic insurgency in its northern regions.
He therefore calls on the government to expedite the reforms process failing which the facilitation team will recommend to SADC heads of state to “take necessary measures against those with intentions to delay or threaten to derail the reforms and national dialogue processes”.
Justice Moseneke also makes it clear in his latest no holds barred letter that SADC’s patience with Lesotho is waning “because we think the national interest and the future of Basotho are being sacrificed at the altar of political expediency”.
“We hope and trust that the Facilitation Team is not going to be pushed to the limit in order to end up proceeding with the suggested course of action,” Justice Moseneke concludes in what is clearly a naked threat.