Advocate Haae Phoofolo (King’s Counsel)
Former Justice, Law and Constitutional Affairs Minister defends the human rights record of the ABC, BNP and LCD government
The Democratic Congress (DC) Youth League has condemned statements by several organisations expressing concern at the country’s security situation. In a statement titled, ‘Who is fooling who?’ the youths lambast the organisations for “choosing to wage a clandestine war of media statements in support of the disorientated opposition in an attempt to lend credence to clearly baseless utterances and attention-seeking political stunts of the opposition cadre.”
The youths then listed several alleged human rights violations during the All Basotho Convention (ABC), Lesotho Congress for Democracy (LCD) and Basotho National Party (BNP) coalition government, which lost power after the 28 February 2015 snap elections, yet “these self-proclaimed custodians of human rights and good governance were silent”.
Advocate Haae Phoofolo (King’s Counsel) was Justice, Law and Constitutional Affairs Minister under that government headed by ABC leader Thomas Thabane, and speaks with Lesotho Times (LT) reporter Lekhetho Ntsukunyane about the DC’s accusations.
LT: The DC Youth League has accused the previous coalition government, particularly the ABC as the leading party in that administration, of several “unlawful” acts. As the minister responsible for law and order in that government, and also an ABC member, what is your opinion on this statement?
Phoofolo: What I am doing is that I am not necessarily defending the record of the government which I served as minister. But there are certain things which were said by those youths whose record must be set straight because they are misleading to the public. In fact, they are unnecessarily tarnishing the image of a government that I served, particularly myself as a minister of that government. The reason why I am setting the record straight is although I am no longer in government, I have to keep my profile clean because now I am serving the public. Who knows, I might serve the country again in future?
LT: Let’s start with the statement by which the youths said the 2009 coup attempt was sponsored by the ABC where foreign mercenaries attacked State House “with intent to kill a sitting Prime Minister (DC leader Dr Pakalitha Mosisili). What is your response to this?
Phoofolo: I don’t know that the attempted coup was sponsored by ABC mercenaries, but what I know is I defended those mercenaries in court. No such evidence ever came out in such a court of law from the crown that the ABC had anything to do with that attack. I just want to put the record straight. I was defending the mercenaries. No such evidence ever came, either in the trial by any state witness, particularly the accomplice witness. You know an accomplice witness is a person who does things with you and goes and confesses in a court of law. So even though I say I do not know that the ABC sponsored that incident, that evidence should have come out in court, if that was the case. The only person who was mentioned in that trial, a Mosotho, was Ntate Jessie Ramakatane. He was mentioned by an accomplice witness as having been the person who recruited them. And you would recall that among those people there is no single Mosotho. They are all Mozambicans and South Africans. No Mosotho among the accused. Ntate Ramakatane is the only Mosotho mentioned and it was never said of him that he was working for the ABC, BNP or any other political party. It was never even said that he was doing it for the ABC when his name was mentioned. I am referring to his name because all I am saying is that during evidence, it was disclosed by the accomplice on record.
LT: So if there was no such evidence, where do the DC youths get such information from?
Phoofolo: I don’t know what other evidence they have. But if they do not have evidence, their statement is defamatory. And you can defame any person or organisation. You don’t defame people only. You can defame an organisation like the ABC. And I am not saying this because I am an ABC member, but because I am a lawyer.
LT: The youths also say the “ABC-led government subsequently issued a blanket amnesty to perpetrators of these acts of terrorism…
Phoofolo: The ABC never gave amnesty to the perpetrators of this act. The perpetrators are languishing in jail right now. As I am talking to you they are serving jail sentences. And this trial took place during the ABC-led government. The ABC never said stop that trial. Actually, the ABC-led government made sure the trial continued. I recall when we were discussing this in cabinet, whether or not these people should be given amnesty, cabinet was unanimous that acts like these, if people who commit them are given amnesty, it means they will do it again and again. People must know that to attack the prime minister’s residence or any government institution, is treason. And they must be dealt with so that they don’t repeat it. And you should recall we are talking about the people who attacked Ntate Pakalitha Mosisili – leader of the Democratic Congress, not the ABC – in 2009. To say they have been given blanket amnesty, is false. The youths are so misinformed. I think they are mixing up issues, if at all they know what they are talking about.
LT: And why do you think they are deliberately mixing up issues?
Phoofolo: What I think they are referring to here is the coming back to Lesotho of Ntate Mokherane Tsatsanyane, who is now Member of Parliament, Ntate Khotso Lebakeng, Ntate Litšitso Sekamane, Ntate Thabiso Mahase and Ntate Thabo Thantši who left the country and sought asylum in South Africa during the 2007 political crisis. When they were in South Africa, they were subsequently arrested and I, again as a practising lawyer, had to go to release them in Vanderbijl Park, Vereeniging. They had been arrested under pretext they faced some charges in Lesotho. But there was no proof of that, which was why they were released. The following year, they were arrested again and appeared in the Bethlehem Magistrate’s Court for extradition. It is there that the Director of Public Prosecutions (DPP) of Lesotho declared that there were no charges pending against those people in Lesotho. So even if these youths are mixing up issues, they are still not telling the truth.
LT: That being the case, why were these gentlemen not coming home?
Phoofolo: They still feared for their lives because of political issues. But there were no charges against them. Only when the coalition government of the ABC, BNP and LCD came to power in 2012, were they willing to come back home. I remember well that when they came home, there were eyebrows raised from the then opposition parties. And then I went on air and explained that these people were never ever charged with anything in Lesotho. If ever there were charges, I said the police should arrest them forthwith because they were here now. And they were not arrested. Ntate Mokherane is even an MP now. And I still challenge the Ntate Mosisili-led government to arrest those people if there are charges. The DPP certified long ago that there were no charges against them. If there was any crime they committed, maybe it was to come back during the ABC-led government. I want to also add that their coming back was thoroughly discussed by cabinet. It was not a one-man thing. I was actually the one moving it for discussion in cabinet. And there was no amnesty granted to them because there were no charges against them in the first place. Tell me, if Ntate Tom (Thomas Thabane) and the other two opposition leaders come back into the country after fleeing for their lives to South Africa, would they say they have now been given amnesty?
LT: What exactly is amnesty? Who gets it?
Phoofolo: Amnesty is done through a parliamentary law. It is a legislation. Before anyone is granted amnesty, there has to be a law passed through the auspices of parliament to effect it. During our tenure in government, no law was ever enacted to grant amnesty to anybody, including these people. And we could not do anything that was not sanctioned by parliament. Parliament didn’t have to sanction anything for those people because they had never been charged or convicted of any offence. Pardon, on the other hand, is only granted by the King. So still, if they were mixing up issues in terms whether these people were granted amnesty or pardon, they should know that none of the above qualifies. Pardon is granted by the King to a person who has been convicted by the court. It is a prerogative of the King. That’s why a person cannot be hanged, after conviction, if such a death sentence is not authorised by the King. The only person charged, and who still remains at large, is Mr Ramakatane. These, what I am telling you, are the true facts, not allegations.
LT: About double ritual murder suspect, Lehlohonolo Scott, who was arrested in 2012 but escaped to South Africa the same year. He has since been re-arrested and is awaiting extradition to Lesotho. The youths are saying he is an ABC member, and because of that your government released him from prison when he was going to stand trial…
Phoofolo: I don’t know whether Scott is an ABC supporter and it is not my concern. My concern is that he be brought to justice if he has broken the law. And that is where my concern was even when I was a minister. It has always been my concern that he should come to Lesotho to answer for his crimes in a lawful, procedural manner. That has always been my grounds and many people failed to agree with me on that factor, even my colleagues in cabinet. They thought my intention was to protect Scott. They accused me of being too artistic and too legal about it. But I just laid down the correct procedure. To say he was released by the ABC government, again is false. It is again another example of attempting to defame the ABC as a political party. As the then minister, I was given a report by Correctional Service officers, which only indicated that Scott could have escaped through the window. That was the report I received and subsequently I tabled it in parliament. It was then discussed and I faced a barrage of serious questions about that report.
LT: It is further noted by the DC youths that Scott had been living “a comfortable sponsored life in Durban…
Phoofolo: I don’t know about Scott living a cushy life in Durban. As a minister then, I didn’t know Scott was living a lavish, cushy sponsored life. But the official version of the government of Lesotho of that time is that it received a report that Scott had been arrested in Durban and would go through extradition processes. Allegations are being made that Scott’s legal fees were being paid by the government of Lesotho, of our time. I want to explain this again to the nation that if any money has to go out to pay for legal fees, it has to be authorised by the Attorney General after a request by the DPP. No such request was ever made or granted by the office of the Attorney General for the government of Lesotho on behalf of Scott. This again is malicious and a fabrication by the youths. And I was surprised that this allegation was even made by the current Prime Minister while on campaigns for elections prior to the 28 February 2015 polls. I respect Ntate Mosisili, but he was also not telling the truth. The way I see it is that they are alleging that the money was not necessarily being sent through proper channels by the government of Lesotho. They are saying that Scott was being paid for through the Durban Consulate in KwaZulu-Natal. But I cannot defend this because I don’t know what evidence they have. But that being the case, the Ministry of Foreign Affairs should know. I must also add that we called for a special investigation and some commission of enquiry, regarding Scott. The commission was led by Advocate Karabo Mohau KC, and he came out with a view that Scott must have been released by some of the constables there. Advocate Mohau KC, after his investigation, came up with the report showing that there was no way Scott could have escaped through the window. He must have escaped through the help of the wardens. Advocate Mohau KC recommended further investigations, and we didn’t take his word lightly.
