SADC Commission of Inquiry report main findings

FROM its proceedings and analysis of testimonies heard, the Commission has come up with the following findings:

1. That some of the mutiny suspects were subjected to torture and forced to confess to a mutiny plot and to implicate other people. The involvement of Brigadier Mahao on the alleged mutiny plot remains doubtful as there was no evidence to prove his involvement.
2. That there are no former members of the LDF who have been kidnapped, but the manner in which the mutiny suspects were arrested by the LDF was seen as kidnapping/abduction by some Basotho, hence cases of habeas corpus applications in the High Court of Lesotho.
3. That there are no proven killings of opposition party members, nor was there evidence of any politically motivated killing led before the Commission.
4. That there were consistent and persistent threats on Brigadier Mahao’s life by some members of the LDF who would publicly, before military parades declare that Brigadier Mahao will be shot if he could set foot in military barracks, These utterances and previous attempts on his life manifest a desire to have him dead.
5. That the operation to investigate and arrest alleged mutineers including the attempt to arrest Brigadier Mahao was duly authorized by the Honourable Minister of Defence Mr. T. Mokhosi, but lacked control mechanisms in that the Honourable Minister did not insist on being kept abreast as the operation unfolded, neither did the LDF find it necessary to keep him informed.
6. That on a balance of probabilities, the evidence shows that Brigadier Mahao did not resist arrest.
7. That on a balance of probabilities, even if it is accepted that he pointed a pistol at one of the arrestors, excessive force was used, particularly after the first shot, which immobilised his right arm, thus, the additional two shots were unnecessary. Therefore, the degree of force used on the deceased was not commensurate to the danger he posed with the pistol.
8. That Brigadier Mahao died from bullet wounds caused by three shots into his body from an AK47 rifle at point blank range.
9. That the hospital staff washed the clothing and the body of the deceased, making it difficult for the pathologist to assess how much blood he had lost, in order to estimate when the deceased could have died; therefore the allegations that Brigadier Mahao was walking when arriving at the hospital cannot be ruled out. However, the pathologist testified that it is improbable.
10. That the former Prime Minister Dr Thomas Thabane, in dissolving the court martial for Brigadier Mahao, acted within the law.
11. That the appointment of Brigadier Mahao as Commander of LDF on the 29th August 2014 was legal. The law is clear that the appointing authority, then Prime Minister Thomas Thabane had no legal obligation to consult on the appointment.
12. The former Prime Minister Dr. Thomas Thabane used his constitutional powers in removing Lieutenant General Kamoli from office and was not required to consult anyone in that action. Lieutenant General Kamoli was legally removed as Commander and should have approached the courts of law if he felt aggrieved.
13. The Commission finds that the removal and demotion of Brigadier Mahao was legal, but the manner in which it was done was flawed as the Prime Minister Phakalitha Mosisili “show cause” letter was ill advised. The “show cause” for the termination premise on that Brigadier Mahao was facing court martial. When the fact of the matter is that the Court martial was simultaneously dissolved with his appointment on the 29th August 2014.
14. The issuance of Legal Notice No. 61 of 2015 which reappointed Lieutenant General Kamoli as Commander LDF was within the law and in accordance with the LDF Act of 1996. However, the manner in which it was done, in particular the revisiting of another Prime Minister’s term of office is improper. However, the legal notice itself was competent to dismiss Brigadier Mahao as it was issued by the His Majesty the King on advice of the Prime Minister.
15. The re-appointment of Lieutenant General Kamoli perpetuated the divisions within the LDF as he vowed to deal with those who celebrated his removal, as evidenced by fleeing soldiers and that he caused some officers to resign.
16. That the fleeing of opposition party leaders after Lieutenant General Kamoli’s reappointment and parliamentary boycott by opposition amountsto political instability. That these political challenges if not arrested might spiral out of control with the consequence of failing the current government. q. That there are several investigations by LMPS on LDF members which were hindered by the Lieutenant General Kamoli by refusing to hand over suspects to the police. This disregard for the Rule of Law by the LDF, is evidenced by existing warrants of arrests on some members of LDF including Lieutenant General Kamoli charged with High treason arising from the 30th August 2014 unrests.
17. That the LDF Act Section 5 (b) (ii) and (c) mandate the LDF to issues of internal disorder and maintenance of law and order as well as prevention of crime, which are commonly known to be police duties.
18. That the investigation on the death of Mahao has been stopped, The Commission is persuaded to believe that this move was calculated to hide the fact that the LDF hindered the investigations. The facts are that the LDF refused to surrender physical evidence (weapons and vehicles used and the deceased mobile phones).
19. That there is deep rooted politicisation of the security sector especially the LDF and LMPS as it was witnessed that some members of the said institutions actively participated in politics.

Recommendations

With the testimonies and analysis of matters relevant to the mandate of the Commission, and in the interest of finding peace for the Kingdom of Lesotho, and bringing closure to the killing of Brigadier Mahao, the Commission proffers here below, some recommendations for consideration:

1. The Government of Lesotho should ensure that the criminal investigations on the death of Brigadier Mahao be pursued vigorously and that the LMPS is empowered and resourced accordingly. The investigation should be conducted expeditiously and comprehensively without any hindrances and that all physical evidence be surrendered. The finality of the investigations should lead to a transparent course of justice.
2. 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.
3. The Commission has observed that some of the political and security problems peculiar to the Kingdom of Lesotho emanate from the Constitution of the Lesotho. The deficiencies and overlaps in the constitution with regard to mandates of security institutions, need to be looked into urgently with a comprehensive strategy to reform them.

The Commission has noted that SOMILES report covers extensively the areas of reform (constitution, security sector, public service and information and media) pertaining to the Kingdom. To avoid repetition, the Commission therefore recommends an accelerated implementation of the reforms encapsulated in the SOMILES report. SADC should come up with a direct strategy on how to assist Lesotho in the implementation of these reforms, and that the Lesotho Oversight Committee, established by the 3rd July 2015 Double Troika is operationalised.

1. 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, stated that he would deal with those who celebrated this termination in 2014, it makes the whole case of mutiny highly suspect.

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.