Lekhetho Ntsukunyane
PRIME Minister Pakalitha Mosisili has rejected outright a call by 23 soldiers facing mutiny charges to establish an independent inquiry into their arrest, torture and “degrading treatment” allegedly at the hands of their military colleagues.
Last month, the soldiers wrote a letter to Dr Mosisili through their lawyers saying they had “lost all confidence” in government’s ability to investigate the alleged infractions, and would consider “extraterritorial means to get justice” if the premier did not agree to their demand.
Their letter was copied to Southern African Development Community (SADC) facilitator to Lesotho and South African Vice-President Cyril Ramaphosa, SADC Executive Secretary Dr Stergomena Lawrence Tax, United States Ambassador to Lesotho Matthew Harrington, European Union Ambassador to Lesotho Dr Michael Doyle and Attorney-General (AG) Tšokolo Makhethe (King’s Counsel).
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.
The accused soldiers are Brigadier Mareka, Brigadier Poqa Motoa, Colonel Stemmere, Colonel Kolisang, Major Makhetha, Captain Chaka, Second-Lieutenant Mohasi, Sergeant Mokhobo, Sergeant Semakale, Sergeant Lekhabunyane, Corporal Mokhoro, Corporal Letsilane, Corporal Lipoto, Corporal Manaka, Corporal Mohatlane, Corporal Chele, Corporal Motseko, Lance-Corporal Jobo, Lance-Corporal Molefi, Lance-Corporal Makhooane, Private Pama, Private Bolofo and Private Ralitlemo.
Through their lawyers – Attorneys Tumisang Mosotho and Khotso Nthontho as well as Advocates Koili Ndebele, Mole Kumalo, Monaheng Rasekoai and Christopher Lephuthing – the soldiers alleged they were “abducted by heavily armed and masked members of the LDF” and taken to Setibing army base.
The soldiers also alleged they were kept in solitary confinement and subjected to various forms of torture and inhumane treatment at Setibing.
Among the forms of torture allegedly meted out on the soldiers included being blindfolded and kept in shackles (both wrists and ankles); being submerged in below-freezing water; tied naked on a pole at sub-zero temperatures; physically assaulted, including kicks in the diaphragm, ribcage and scrotum and suffocating with a tube; beaten with rifle butts and metal bars; denied access to food, water and medication; suspended by hanging their handcuffed wrists tied behind the backs on the roof and being subjected to electric shocks.
The soldiers alleged they were accused of being members of the “opposition bloc” and “furthering the mandate of the opposition to destabilise the Lesotho Defence Force and the country as a whole” while being tortured by their colleagues.
Several High Court judgements, they argued, also made reference to the soldiers having been tortured at Setibing, adding the SADC Commission of Inquiry also made “detailed reference” to the allegations of torture and inhumane treatment.
The 10-member Commission of legal and security experts probed Lesotho’s security and political challenges following the fatal shooting of former army commander Maaparankoe Mahao on 25 June 2015.
The soldiers said they could no longer trust government agencies to carry out the probe. They accused the offices of the LDF commander, Commissioner of Police, Director of Public Prosecutions and AG of being complicit in the inaction, demanding that they should not be involved in the proposed inquiry.
However, Dr Mosisili dismissed the soldiers’ request for the establishment of the inquiry, saying most of their allegations were no more than a “political smear campaign and propaganda”.
Addressed to Attorney Mosotho, and dated 7 July 2016, Dr Mosisili’s letter partly reads: “As you are aware, the allegations that your clients had been abducted is not new. Since 2015, it has been peddled by some media houses in the country, ostensibly pursuing a clear political agenda against the present ruling administration.
“To me, the allegation has been no more than a political smear campaign and propaganda. It is devoid of any truth or bona fides, but cheap politicking. I can do no better than remind your clients that the Court of Appeal, the highest judicial authority in Lesotho, in civil appeal No.29/2015 questioned and rejected the same allegation.
“Ordinarily, that ought to have put the matter to rest, once the courts of law had pronounced on the issue. I am really appalled that your clients have found it fit to raise with me the issue, unless the message is that they give scant, if any, consideration to the judgments of the courts of law.”
The premier said it was, therefore, illogical for him to institute an inquiry since a court of law had already pronounced on the matter.
“By the way, I should remind your clients that in its fullness, the allegation of abduction of your clients had the component that the army in Lesotho was after members of the opposition and assassinating them,” he said.
“As you are aware, this too was rejected out-of-hand by the recent Commission of Inquiry headed by a judge of the High Court of Botswana, Justice Mpaphi Phumaphi, who had been nominated by SADC and appointed by my office to lead the commission.
“The commission has labelled the allegation ‘information peddling’. I think, with the label, the commission put its finger on the right pulse. “Your clients must exercise caution not to go with the flow of what is fashionable to say, even if the virtue of truthfulness is, in the process, sacrificed. Repeating a lie does not turn it into truth.”
On the soldiers’ claim their arrest and detention was unlawful since the reasons thereof were not given, Dr Mosisili said: “Again, the least I can do is to remind you that in the Court of Appeal civil case No.52/2016, the dispute as to whether the Minister of Defence (Tšeliso Mokhosi) was justified to have convened the Court Martial to hear the case of your clients was decided in favour of the minister. In that case, among other several prayers, your clients had asked for their release from detention, but the Court of Appeal refused the prayer.
“In effect then, the highest court of the land has found nothing wrong with the arrest and detention of your clients. Surely your clients will also recall that they have been attempting, at diverse occasions in the High Court of Lesotho, to impugn their arrest and detention, but in vain. “Sincerely, I cannot see otherwise but that the issue of whether your clients were lawfully arrested or detained is dead and buried, judicially.”
Commenting on the torture allegations chronicled in the letter, he said if the infractions were allegedly committed in detention, the soldiers could make use of legal remedies at their disposal in the High Court.
“. . . and I must confess that in this regard I am risking to teach to the converted,” Dr Mosisili said.
“On the part of the government, in its right to exercise executive authority on behalf of the Monarch, your clients may be assured that the government of Lesotho will verify the claims, and if at all found to be true, necessary corrective action will follow as a matter-of-course.”
The premier said the soldiers’ contention that the government had failed to act in relation to allegations of torture was disingenuous.
“. . . in all fairness to my office, this is the very first time I have a complaint directed to my office; and, as I say, the matter will be looked into and truth established,” he said.
“However, even as the government will departmentally be looking into your clients’ allegations, your clients will agree that it is not as if they are without effective legal remedies in the courts of law. I cannot overemphasise the point.
“Unless, of course, the allegations of torture are merely a ruse to achieve other ends. Hopefully that is not the case. I do expect that your clients will make use of the remedies available in law, if they are serious with what they are alleging.”
Dr Mosisili said the soldiers’ failure to report the alleged torture to the police formally “raises my concern whether your clients seriously mean what they say”.
“Interestingly, your clients go on to pass a vote of no confidence in the police, yet, from your letter, there is no mention of the police ever having been approached! The same consideration arises from your out-of-nowhere declaration that you have no confidence in the high state offices of Attorney-General (Mr Makhete) and Director of Public Prosecutions (Leaba Thetsane (King’s Counsel). This is wholly unsubstantiated in your letter.
“I fail to make sense from your letter how possibly these two offices have anything to do with the army allegedly torturing your clients. It remains a mystery that they are mentioned in the letter. It may be your right to lose confidence in anything you want, but the learned members of the honourable profession always pontificate to us lesser souls that there has to be a reason for everything done or said. It is my view that in this case, that legal standard has not been achieved.”
He said the soldiers’ allegations gave the impression they just wanted to “vent their anger at the incumbents of the offices, for no apparent reason”.
Dr Mosisili said he would not grant their request for a commission of inquiry because it would be a parallel process to the courts-martial.
“Please advise your clients that their request is not granted, for the simple but important reason that I would be reluctant to be seen running a parallel process to that of the court of law already seized with the question of the alleged mutiny,” he said.
“It can reasonably be expected that in the course of the mutiny trial, the same allegations of torture are bound to arise, and their veracity or otherwise become relevant. I consider that I have to respect that judicial process, and avoid competition with it.
“Of course different considerations would apply if it were not the case that the Court Martial was not already in place, but followed the establishment of the requested commission. I have carefully pondered over the matter, and I consider that it is not worth it to accede to your clients’ request.”
Dr Mosisili’s letter is also copied to Mr Makhete, Mr Ramaphosa, Dr Tax, Ambassador Harrington and Dr Doyle.
