Lekhetho Ntsukunyane
THE government has asked Shaun Abrahams, the controversial former boss of South Africa’s prosecutions authority, to prosecute the case of eight soldiers accused of murdering the Lesotho’s former army commander, Maaparankoe Mahao, in 2015.
In a recent interview, Mr Abrahams confirmed his appointment as the prosecutor of the Lesotho Defence Force (LDF) officers facing charges in connection with the brutal shooting of Lt-Gen Mahao, on a lonely rural road in front of his young nephews.
The Mahao family, which has campaigned tirelessly for the killers to be brought to book, expressed satisfaction over his appointment.
But it is likely to raise eyebrows in South Africa. Widely known as “Shaun the Sheep,” Mr Abrahams was criticised as lacking political independence during his time as South Africa’s National Director of Public Prosecutions (NDPP) between 2015 and 2018.
He drew particular fire for failing to pursue corruption charges against former president Jacob Zuma, as well as his inaction on the Gupta family, despite mounting evidence of their criminality and undue influence over the state.
In August this year, the South African Constitutional Court nullified Abrahams’s appointment as National Prosecuting Authority (NPA) head, effectively terminating his three-year tenure.
The court ruled that Mr Zuma’s removal of his predecessor, Mxolisi Nxasana, in 2015 was an unconstitutional abuse of power, and that Mr Abrahams’s subsequent appointment was correspondingly invalid. He quit the NPA on August 13 to resume private practice.
In an interview, he told amaBhungane: “I’m a duly admitted and practising advocate who is on brief to represent the Crown in the matter of Rex v Litekanyo Nyakane and seven others, which … relates to the murder of the former commander of the Lesotho Defence Force, Maaparankoe Mahao.”
He said Lesotho’s Director of Public Prosecutions (DPP) “may retain the services of counsel to conduct any criminal proceedings instituted by her office as provided by … the Criminal Procedure and Evidence Act …. It is not uncommon for a DPP to retain counsel in specific criminal matters.”
Lesotho has often used foreign prosecutors in high-profile cases.
Mr Abrahams said the Constitutional Court judgment had left him unemployed, adding, “I’m available to be briefed by anyone who wishes to retain or acquire my services.”
On his record as South Africa’s NDPP, he denied having any relationship with Mr Zuma before his appointment and said he had nothing to do with the unlawful removal of Nxasana, “which was unknown to me”.
“The Constitutional Court correctly found that not a single party suggested that I am not a fit and proper person to hold office,” he said. “It is regrettable that some have mischievously and disingenuously attempted to portray otherwise.
“The Constitutional Court also preserved the decisions taken by me and acts performed in my capacity as NDPP.”
He added that all his engagements with Mr Zuma were in an official capacity.
Abrahams said he had served as NDPP during the most volatile political period since South Africa attained democracy “and am glad that I was at the helm of this all-important institution at the time”.
Prosecutorial independence will be of particular importance in the Mahao murder trial, given its political sensitivity.
The Lesotho police commissioner, Holomo Molibeli, has hinted that other, more senior figures are being investigated over the 2015 murder – a possible reference to ministers in the cabinet of former prime minister Pakalitha Mosisili., who may still be in office.
Lt-Gen Mahao (47) was appointed LDF commander on August 29 2014 after Prime Minister Thomas Thabane fired the then army commander Tlali Kamoli for insubordination.
Lt-Gen Kamoli challenged the dismissal and staged a coup attempt in August 2014, kick-starting a chain of events that culminated in the snap elections of February 2015. These ushered in the seven-party coalition under Pakalitha Mosisili that replaced Dr Thabane’s government.
The Mosisili administration reinstated Lt-Gen Kamoli, arguing that his dismissal and Lt-Gen Mahao’s promotion were illegal. A notice in the Government Gazette also announced the termination of Lt-Gen Mahao’s appointment as LDF commander and demoted him to his former rank of brigadier.
Lt-Gen Mahao challenged his demotion in the High Court but the case fell away after he was fatally shot on his way to his farm in Mokema, outside Maseru, in the presence of his two nephews on June 25 2015. The killers were soldiers.
According to a public statement by the nephews and a letter by the family to UN Secretary-General Ban Ki-moon and various African leaders, his truck was chased and stopped by three military vehicles.
A group of men with AK-47 rifles, including one in soldier’s uniform, then shot him as he sat in the driver’s seat.
In their statement, which they also made to the police, the nephews said they opened the passenger door and got out but were detained by the killers.
They alleged that after Lt-Gen Mahao fell out of the truck through the open passenger door, his murderers dragged his bleeding body face-down across the tarred road and threw it into one of their trucks.
Two vehicles drove off to the military hospital, while the third one stayed behind and held the nephews for 40 minutes before releasing them.
The LDF claimed that Lt-Gen Mahao was alive when he reached the hospital and was able to walk, a claim the Mahao family angrily disputes.
The family accuses the army of killing him in cold blood.
The military also alleged Lt-Gen Mahao was shot while resisting arrest for leading an army mutiny. A Southern African Development Community (SADC) inquiry into his death rejected this account.
The SADC commission of inquiry, headed by retired Botswana judge Mpaphi Phumaphi, found that Thabane’s appointment of Mahao as army commander was lawful.
It recommended that the government should investigate the killing and prosecute those responsible.
Dr Mosisili’s government appears to have ignored this recommendation. Only after Dr Thabane’s return to power in the wake of the 3 June 2017 elections did the police arrest the eight soldiers in connection with the death.
Captain Litekanyo Nyakane, Captain Haleo Makara, Sergeant Lekhooa Moepi, Sergeant Motsamai Fako, Corporal Marasi ‘Moleli, Corporal Motšoane Machai, Corporal Mohlalefi Seitlheko, and Corporal Tšitso Ramoholi appeared in the High Court of Lesotho in Maseru last week. The case was postponed until February next year.
They had earlier pleaded not guilty to a charge of murder.
The Mahao family representative, Professor Nqosa Mahao, told amaBhungane that the family was satisfied with the appointment of Mr Abrahams, “as it now looks like the case will proceed and there is a sign of commitment by the government with the appointment of a foreign prosecutor”.
However, Prof Mahao was quick to note that the family was concerned that other more senior suspects had not been arrested.
“The mission to assassinate Maaparankoe that fateful day was too big to be orchestrated by those eight junior army officers alone. There are kingpins in this operation. Authorities approved the operation. We want them arrested and to answer before the courts.”
One of the family’s complaints is that Lt-Gen Kamoli, who is currently in jail facing murder, attempted murder and other charges, has not been charged in connection with Lt-Gen Mahao’s death.
Professor Mahao said the family had registered its concern with the acting DPP Hlalefang Motinyane last week. Repeated attempts to get Motinyane’s comment were unsuccessful.
