Lekhetho Ntsukunyane
THE Justice Mpaphi Phumaphi’s report on Lesotho’s instability says former prime minister Thomas Thabane acted within his legal authority in appointing the late Maaparankoe Mahao as army commander.
According to the report, which was tabled in the National Assembly on Monday by Prime Minister Pakalitha Mosisili, Dr Thabane had no legal obligation to consult his then coalition partners in making the appointment.
Lt-Gen Mahao was appointed Lesotho Defence Force (LDF) commander on 29 August 2014 after Lt-Gen Kamoli was dismissed by Dr Thabane on for alleged insubordination. However, Lt Gen Kamoli rejected the dismissal challenging its legitimacy.
However, after Dr Thabane relinquished power in the wake of the 28 February 2015 snap elections, the seven-party coalition government led by Prime Minister Pakalitha Mosisili reinstated Lt-Gen Kamoli, arguing that his dismissal and Lt-Gen Mahao’s promotion were illegal. Lt Gen Kamoli was reinstated in a Government Gazette dated 21 May 2015 with another gazette issued on the same day terminating Lt-Gen Mahao’s appointment as LDF commander.
The 62-page report notes that then Brigadier Mahao was on suspension and facing a court martial “and therefore not promotable” at the time of his appointment.
“However, evidence was led to the effect that the former Prime Minister, Dr Thomas Thabane dissolved the court martial which automatically cancelled the suspension of Brigadier Mahao through a letter addressed to Major General Poopa dated 28th August 2014,” reads the report.
The 10-member commission notes that the dissolution of the court martial was challenged by evidence from government and LDF officials who argued that Dr Thabane had no powers to dissolve the court martial that he did not convene.
“A Lesotho Defence Force (Delegation of Powers) Legal Notice No.131 of 2000 which delegates the functions to convene a Court martial to the Commander of LDF was submitted as evidence proving the loss of powers for convening a Court martial by the prime minister, except for cases relating to mutiny,” it states.
“Evidence further shows that the former prime minister had earlier dissolved the court martial through a letter dated 26th February 2014, but upon advice or ‘further reflection’ he decided to withdraw the dissolution of the court martial and consequently wrote to Lieutenant-General Kamoli on 4 March 2014 informing him to proceed with the court martial to its finality. It could be said the latest dissolution was after another advice or reflection on the matter.”
However, the report cites the LDF Act No. 4 of 1996 at Section 92(1) which gives the Minister of Defence powers to convene and constitute a court martial and the powers to dissolve it is provided for at Section 100(1) of the same Act.
“These provisions, read with the Lesotho Defence Force (Delegation of Powers) Legal Notice No.131 of 2000 delegates the functions to convene a court martial to the Commander of the LDF,” notes the report.
“Generally, the principle of delegation of powers implies that even where a function or power has been delegated to another to perform or use, that fact does not prevent the discharge of delegated powers by the person or body who delegated it.
“Thus, the delegatee (sic) (Minister of Defence) is an agent and his actions are on behalf of the repository (Prime Minister) of the powers so delegated.
“The delegator still has the responsibility to account for those delegated powers so much so even to stop any abuse or misuse of the powers he had delegated. All that is required is to inform the delegatee of the decision.”
As a result, the Commission determined that Dr Thabane was within his powers to dissolve the court martial.
“The Commission therefore, finds that the former Prime Minister Dr Thomas Thabane, acted intra vires (within the legal power or authority) as provided in Section 100 as read with 92 of the LDF Act, in dissolving the Court martial because he was the convener,” the report states.
The inquiry also takes note of allegations made by Dr Thabane’s then coalition partner and Deputy Prime Minister Mothetjoa Metsing that Lt-Gen Mahao’s appointment was done in bad faith and in an unprocedural manner as it did not follow the coalition agreement that formed the government. However, it also concludes that Dr Thabane did not legally need to consult his coalition partners in promoting Lt-Gen Mahao.
“In advising His Majesty the King for the appointment of Brigadier Mahao, the Prime Minister Dr Thomas Thabane acted within his legal authority and therefore the resultant Legal Notice is without flaws. The law is clear that he had no legal obligation to consult on the appointment,” says the report.
The voluminous report also touches on the assertion made by Dr Mosisili in demoting Lt-Gen Mahao that the latter’s appointment was illegal because Lt-Gen Kamoli was not afforded the right to be heard when he was fired by Dr Thabane.
“Evidence further indicates that Lieutenant-General Mahao was given a chance to answer for himself why the Prime Minister Pakalitha Mosisili could not terminate his appointment and commission as Commander LDF,” the report notes.
“Evidence shows that the Prime Minister Pakalitha Mosisili was not convinced by Lieutenant-General Mahao’s response and went ahead to advise His Majesty the King to terminate his commission as Commander LDF, A Legal Notice No. 60 of 21st May 2015 was published which terminated Lieutenant-General Mahao’s commission as Commander LDF effectively from 22nd May 2015.
“This was followed by a letter dated 22nd May 2015 to Lieutenant General Mahao informing him of his removal as Commander LDF and that he reverted back to his previous rank of Brigadier. Evidence further shows that Lieutenant-General Mahao challenged his removal through the courts of Lesotho and the matter is still before the courts.”
However, the commission states that Dr Mosisili acted “irregularly” in asking Lt-Gen Mahao why he could not be fired for accepting the appointment when he knew that there was an incumbent commander and facing a court martial.
“The fact of the matter was that the court martial was simultaneously dissolved with his appointment,” states the report.
“It was unprecedented in terms of military practice and for discipline purposes for someone who had been appointed commander of a Defence Force and subsequently demoted and continue to serve. The military practice is to retire one who has reached such an appointment.”
In the case of Lt-Gen Kamoli, the commission concluded that his reinstatement by Dr Mosisili last May was within the law, although it queried the premier’s decision to make the appointment with effect from 29 August 2014 when he was fired.
