lesothoanalysis

Introduction

The Lesotho crisis as we all are aware, has preoccupied SADC Summits over the past three years or so. All those Summits, dealt with the Lesotho issue as an irritant which they had to handle but not pay special attention to long-term solutions. The January 2016 Summit in Gaborone on the other hand, was different. It came after an unprecedented intervention by SADC in the affairs of a Member State, which seemed unable/and or unwilling to handle simple criminal cases of murder of a former Commander of its forces by his successors. It was a case where all the Leaders of Opposition Political Parties had fled the country as a results of credible threats to their lives by the same armed forces. It was also a summit which was held and received a harrowing report by an international commission of inquiry on the whole instability issue in Lesotho. The Phumaphi Report was for some an eye opener. It revealed that the Lesotho State is either held hostage by the military or it was complicit in the crimes which stretch for more than five years and are unable to be brought to the courts because the military has become a law into itself.

When SADC accepted and endorsed the Phumaphi Report in spite of fierce opposition by the Lesotho Government, an unprecedented challenge to the traditional Westphalia State System with its emphasis on sovereignty and internal affairs had been launched. SADC went so far as to threaten to suspend Lesotho from the organisation. But more importantly two of the Leaders who attended the meeting, told the media that if Lesotho is unwilling to implement the decisions taken at the Summit, they would be willing to enforce the implementation of those decisions. The letter by Mozambican President in his capacity as the Chairperson of the SADC Organ on Politics Defence and Security Cooperation to Lesotho Prime Minister Mosisili, is one step towards the implementation of the recommendations of the Phumaphi Report.  The meaning and implications for Lesotho are immense and need to be understood.

The Tussle Between SADC and Lesotho Government

The Phumaphi Report which is the basis for the tussle between the Lesotho government and SADC essentially spells out short-term matters which have to be undertaken by the government in order to stabilise the country. Those include the following:

1. a) Relieve Lt. General Kamoli of his commission as Commander of the LDF. The rationale is spelled out clearly by the Commission. He is a divisive force within the army who vowed vengeance on those in the military who rejoiced when he has fired by the previous government; he has harboured and protected soldiers who have committed murder and other serious crimes throughout the country; he is more importantly accused of involvement in a case of High Treason (Paragraph 138 Phumaphi Report).
2. b) “….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 pending investigations, all the soldiers who have been accused of committing crimes ranging from High Treason to murder also listed in the Commission Report (Paragraph 140 (b) of Phumaphi Report.)
3. c) Facilitate the return of all the exiled Basotho and provide security for the political leaders who are in exile.

The Commission further recommended that the recommendations made by SADC Facilitator, Cyril Ramaphosa at the end of his first mission to Lesotho, for constitutional, public sector and security reforms be implemented, since it had become clear that some of the challenges Lesotho faces arise from constitutional confusion, and unprofessional and politicised public service and security services. This was viewed as a long-term process which would be discussed in the August 2016 Summit of SADC.

The dilemma has been that the government has been frozen with fear and complicity to implement the critical short-term measures which would allow for undertaking of the long-term measures. The government is fearful of the retribution of Kamoli should they try to remove him. They are aware of his earlier declaration that he will not leave office. At the same time they are aware of an equally unmovable stance of SADC that he should leave office.

The government is at the same time complicit in the crimes committed by the military over a period of time. Indeed, the majority of the soldiers who have warrants of arrest for both High Treason and Murder have now been promoted, some even jumping ranks. These are unmistakeable signs of reward. Prime Minister Mosisili has now on several occasions been at pains to thank the military for him being back in office.

Faced with the reality above, SADC has had to act firmly to ensure that the rule of law is brought back in Lesotho in spite of the delaying tactics of the government.

Nyusi’s Diktat  

Following a visit to Mozambique by Deputy Prime Minister Metsing, a clear message was received from SADC as shown in the Record of the meeting. First and foremost the Lesotho delegation was left in no doubt that the decisions of SADC in the Gaborone Summit in January 2016 have to be implemented in full and without exception. This put to bed the arguments which at the local level, the government had been regularly making that it will pick and choose those recommendations it felt like.

The meeting of the 25^th February 2016 in Maputo first of all put specific timelines for the government. It set the dateline for implementation of the recommendations with immediate effect and submit a progress report to the SADC “…on each recommendation with a clear roadmap and time-lines in line with the decisions of the 18^th January 2016 SADC Double Troika Summit. The progress report should be submitted by Friday 4^th March 2016”.

In his follow-up letter to Prime Minister Mosisili, President Nyusi writing on the 11^th March 2016, goes back to the Record and reminds the Prime Minister that the progress report was due on Friday 4^th March 2016. This means that there was no extension of time for submission of the progress report. But he goes further to make two issues which have been little talked about. First, while the Communique from the SADC Summit dealt with the facilitation of the return of the exiled political leaders, Nyusi now elaborates this to include the all Basotho exiles. “..Finalise the Memorandum of Understanding on the safe return to the Kingdom of Lesotho of all exiled Basothos that include provisions of security to the Former Prime Minister and other opposition leaders. This process should be finalised by Friday, 4^th March 2016.” It is important to note that all along, it was as if SADC was focused on the save return of the political leaders rather than all exiles. With more than twenty army officers exiled in South Africa this interpretation of the decisions of SADC is important.

Second, the fact that SADC has now advanced the dateline for the submission of the roadmap for constitutional, public sector and security reform to the end of March 2016 is significant. While the Communique had only indicated that the matter would be discussed in the forthcoming Summit in August 2016, Nyusi now has directed that the roadmap should be submitted by the 31^st March 2016. This is to avoid the possible dilly-dallying that was observed with disappointed in the Gaborone Summit in January 2016. It is important to note that no constitutional reforms can be undertaken by the government on its own. Most of the provisions referred to in the SADC Mission on Lesotho, require a two thirds majority in parliament. The government has a bare majority in parliament. The cooperation of the opposition would be imperative if there was to be any constitutional reform. But the opposition are unlikely to offer any cooperation unless the security issues which have forced the political leaders to flee the country have been resolved.

Meaning and Implications of Nyusi’s Diktat on Lesotho

At the centre of the tussle between SADC and Lesotho government is a simple issue of ensuring that the latter is accountable for its actions and those of its agents. It is about failure to enforce the rule of law. With SADC’S firm stance on the above, we have to ponder what are the likely scenarios and implications of the standoff. The implementation of the recommendations of the Phumaphi Commission has not started. The only tentative thing that has begun is discussions with the opposition political parties. But those discussions are not and cannot be about implementation, but timeframe of implementation. That is, SADC decreed what has to happen. As such the agreements can be on type and nature of security to be provided to the political leaders and also to ensure that other exiles come back into the country once security is present.  Removing Kamoli as Commander of LDF is thus a prerequisite of the settlement.

For Lesotho, two scenarios present themselves if the government fails to implement the decisions which it has been directed to implement by SADC. First is the isolation scenario. Lesotho would be isolated and sanctioned by SADC. In its present state of poverty and lack of resources, the country cannot sustain itself even for a month. The 1985 situation whereby the apartheid South Africa slowed down movement at the border leading to the collapse of the government is an example of what it would mean to be isolated. It is important at the same time to understand that international public opinion was at that time with the Lesotho government. At present, the Lesotho government would be unable to find any support internationally, since it is essentially standing for the wrong values. Protecting criminality can never endear the government to other states. This would lead to a collapse.

Another scenario, is one whereby an expeditionary force is dispatched to disarm and arrest the suspected criminals for prosecution. When South African President Zuma told the press that the decisions would be implemented by SADC on behalf of Lesotho if the government refuses to do so, he could only have been thinking of this option. This option has its complications since it would involve bringing a violent end to the army rebellion which has been present for over two years. The Phumaphi Commission indicates that the LDF has become a law into itself. There is no civilian control over the army and that is essentially what stands out in Lesotho. But it must be clear that it needs not result in the actual use force. It could end with a clear indication that force will be used. Certainly surrender would follow.

Both scenarios would lead to suffering by the people. But the rebellion would end and normal politics would begin. When the SADC Executive Secretary lands in Lesotho on Tuesday, 30^th March 2016, a day before the expiry of the dateline for submission of the roadmap for constitutional, public sector and security reform, one hopes that the government will have seriously considered its dilemma. It should have considered its fear of its internal allies and what could befall the country if it does take action.

Professor Mafa M. Sejanamane

Introduction

Since independence in Africa as a whole, two competing governance systems have predominated. First has been the democratic type which unfortunately has not had deep roots. Another type has been the military form in its many varieties. The dominant one has been one where the military has directly run the government itself. Another version has been an indirect form where the military has its surrogates in government. These have been either the military men changing uniforms for suits or where the civilian authorities are complicit or fearful of the men in uniform.

Lesotho has had all the above forms and this is essentially the reason why we still have to deal with the crisis. It is about a refusal by the military that they cannot be a state within a state in a democracy. Deep-rooted as this culture is within the LDF, it has been used by some politicians to get into power or cement their stay. That is the foundation of the current instability in Lesotho. The military and its civilian backers are desperate to keep the status quo.

Behind the Instability

Reflecting on the current Lesotho crisis, it is clear that three periods of a move towards intensified instability are identifiable.  2014 ushers in a period when the LDF Command openly staged a rebellion which progressed to an attempted coup in August 2014. Though the coup failed, the Command had achieved its main objective of easing out an elected government from power. The refusal of the Commander of LDF to hand over soldiers who had bombed two residences in Moshoeshoe II; the announcement by Lt. General Kamoli, Commander of LDF in a press conference that he cannot be removed from office, together with the utterances to the same effect by one junior officer, Captain Hashatsi who vowed that Kamoli cannot be removed from office as long as he was alive began the current phase of the Lesotho crisis. The attempted coup was the culmination of the rebellion. Its prize was ultimately the demise of the government headed by Prime Minister Thabane.

Second period begins shortly after the 2015 elections when the Command’s allies managed to coble a coalition government of seven (7) political parties with Prime Minister Mosisili at the helm. This would have been a crowning momentt, had the government and the army Command not acted recklessly by intimidating political opponents; arresting and murdering the former Commander of the LDF thus leaving no room but intervention by SADC. What would have been the crowning moment for the new government turned into a nightmare. It brought to the attention of the whole world that the government was either in collusion with the criminal network within the LDF, or it was plainly incompetent. The nightmare was actually magnified by the inexplicable testimony of Mokhosi, the Minister of Defense and National Security, to the Phumaphi Commission. He testified that he was informally advised of the existence of a mutiny and informally authorised investigations but knew nothing about the progress. He often referred to the activities of the army during those investigations as “their thing- Army Command”. He showed that he was sleeping in the office!

The third period begins with the Extraordinary SADC Double Troika Summit in Pretoria in July 2015 which established the Commission of Inquiry headed by Justice Phumaphi. The submission and endorsement of that Report by SADC in January 2016 and the attempts to frustrate the implementation of those decisions of SADC on that brings us to the stage of an intense tussle, between the Lesotho Government and SADC. What is the tussle about?

The Phumaphi Report’s Challenge

Unlike all earlier attempts by SADC to resolve the instability crisis in Lesotho, the Phumaphi Commission focused on both the immediate issues at hand and the long-term ones. But even more important, it did not focus narrowly on the gunmen who murdered Mahao in June 2015. The Commission went to the core of the problem. The LDF was identified as the centre of the crisis. It was identified as an unprofessional, politicised force and which was not accountable to anybody. The Commission, for example cites an elaborate scheme to hide evidence of the murder of Mahao, which included the washing of the deceased body and his clothes before he was handed over to the police.

On a broader level, the Commission indicates that investigators were denied all physical evidence and points out that the LDF refused to provide the names of the people who were involved in the operation that led to the death of Mahao. It points out that evidence exists that the LDF is not accountable for its actions.

135. Evidence was led to the Commission that a section within LDF is law unto itself having been involved in several criminal atrocities in the Kingdom of Lesotho and that several attempts by the LMPS to have access to the suspects were denied. When confronted with these allegations, the legal advisor of the LDF Colonel Sechele indicated that the LDF had since adopted a position that it would not release its officers to the Police. Evidence was placed before the Commission and supported by documentary evidence that several attempts were made by LMPS to have the suspects released for investigation but failed.

In short, this means that all the crimes allegedly committed by the LDF can only be investigated if and when the army Command pleases. But such discretion clearly cannot be positive if members of the army Command themselves are involved in criminal activities. Thus cases which affect those in power go on pending.  The Report goes further to list the cases which have been blocked by the LDF. They include the following. Morija Police Station CIR 673/01/12 attempted murder, Mafeteng Police Station CIR 30/04/12 murder, Mohale Police Station CIR 03/04/12 attempted murder, Mokhotlong Police Station CIR 274/06/13 attempted murder, Leribe Police Station CIR 12/04/13, Thamae Police Station CIR 146/05/14 murder,  Police Headquarters CIR 778/09/14 murder of a police officer, Maseru Police Station CIR 2535/02/15 murder of a security guard and attempted murder of an LDF member.

Paragraph 138 of the Phumaphi Report goes further to show that virtually the whole Command of the LDF is facing criminal charges. Specifically, it identifies Kamoli himself as implicated in the case of High Treason. “… the LDF became a law unto itself, this is corroborated by warrants of arrest issued on the 17th April 2014 for High Treason against  Brig. Mokaloba, Major Lekhoa, Major Ntoi, Captain Hashatsi, 2nd Lieutenant Nyakane, 2nd Lieutenant Hlehlisi, Corporal Mokhesuoe, and Lance Corporal Mpolokeng Moleleki, and another warrant of arrest issued on the  on the 29th September 2014 for Treason against Kamoli, Captain Hashatsi, Brigadier Mokaloba, Lt. Colonel Phaila, 2nd Lt. Nyakane, 2nd Lt. Hlehlisi, 2nd Lt. Moeletsi, Major Ntoi.” Not surprising is the fact that most of those who are alleged to have committed crimes have now been promoted, and with others skipping ranks. An unusual act in itself.

The issue therefore is that the suspects in crimes like the above, are the ones which the Phumaphi Commission deals with in its Report. “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. “ The challenge however has been that fear of Kamoli is so widespread that those of his allies who have to relieve him of his Command know the potential retribution. They have consequently been employing delaying tactics while they ponder their next move. Those are however doomed to fail since a clear timeframe for implementation of the decisions of SADC has been provided to the government.

What is clear is that SADC wants accountability. In an accountable system of government, when a citizen is murdered, the police take charge and ensure that suspects are brought to the courts. There is no need in such systems to form a commission of inquiry. You may have an inquest. But because of fear and complicity, when the LDF ambushed and murdered one of its own, SADC had to form a commission of inquiry. The government knows that its future is dependent on implementation of the SADC decisions, but it is also horrified by both fear and the recognition that some of its leading members are likely to join their allies in the treason case when it starts. It is thus understandable why they have been stalling the process.

Can Kamoli be Saved?

The truth is that Lesotho a military backed government in Lesotho is ill equipped to remove Kamoli in office. A glance at the names of all those who are facing arrest and trial, indicates that the bulk of the top echelons of the LDF are bound to be swept away thus providing the basis for security reform. No reforms can take place as long as people want to save their skins. As a result of the fear of Kamoli it is clear that the government faces a big dilemma.  It is a dilemma based on potential physical retribution. It is also a dilemma based on political self-preservation. For the government, the question is how it can save Kamoli rather than how he has to be relieved of his Command.

SADC decisions are not difficult to implement. What is difficult for the government is the recognition that Kamoli is their guarantor for staying in power. In a recent radio commentary, by one Arthur Majara who is a ardent supporter of the government, he said as much. For others it is also about how they can avoid answering for their crimes, particularly those about high treason and the murder of Mahao. The crux of the matter is that the starting point of the implementation of decisions is the removal of Kamoli. After that all other issues can be easily handled.

Since the implementation of the decisions of SADC is inevitable, two strategies seem to be in place. Delaying the process has been the most prominent of the strategies. Second is the feverish attempt to negotiate, at international level to provide immunity to the killers of Mahao and also those who were alleged to have been involved in cases of high treason. That has already failed.  At another level, indications are that the government wants to put Kamoli’s future in the agenda for negotiations with the opposition political parties. That however is unlikely to succeed, since there would be insufficient incentives for the opposition to save Kamoli.  In fact, the question of ensuring that accountability for crimes committed and also for demonstrable evidence that there is civilian control over the military has gone beyond local negotiations between government and opposition. It has become an international concern. Thus the international community is now part of the stakeholders who would frown at the idea of leaving murders loose.

Kamoli’s fate has been sealed the moment SADC formed a Commission of Inquiry. All what remains is to ensure that minimum collateral damage is caused when he is removed by either the Lesotho government or the regional body itself.

Professor Mafa M. Sejanamane

Introduction

Just over a year ago, Lesotho went through a general elections which all international election observers concluded had been free, fair and transparent. With no political party achieving an overall majority, it was clear that coalition politics was the only game in town. A motley of seven political parties ultimately managed to cobble a coalition government under the leadership of Prime Minister Mosisili. In his inaugural speech he promised milk and honey but more importantly spoke about how he would restore the good name of the country which was constantly being tarnished by the unsavory things done by his defeated competitors. He promised good democratic governance and accepted the reform package which had been suggested by the Commonwealth Special Envoy to Lesotho, Dr. Prasad. It was an optimistic posture, which those unfamiliar with Lesotho politics could have been impressed with.

The elephant in the room however was Kamoli, who had been dismissed by the previous government but backed by those who have now cobbled a seven member political parties coalition government. Almost all those who formed the government had in one form or another supported Kamoli’s unconstitutional refusal to leave office when a government in power dismissed him. Prime Minister Mosisili had therefore created, even before going into office a conundrum which faces him up to today. It was fear of the wrath of Kamoli who was his ally when former Prime Minister Thabane fired him; it was also the fear of losing the support of some of his coalition partners who would not have countenanced being in government without Kamoli. It would not have worked. Kamoli himself would not have accepted that since he is the one who effectively dispatched the previous government by protecting and sanctioning several unconstitutional acts like keeping a Minister who had been dismissed like him by force in the Ministry of Communications.

On the other hand, Mosisili has now had to face a strong SADC demand that he undo his alliance with Kamoli. Following the Phumaphi Commission Report which SADC has endorsed, and demands implementation of its recommendations, Mosisili is now faced by his fear of Kamoli and also fear of the collapse of his coalition on the one hand; and on the other hand he has to deal with the uncompromising stance of SADC that he must stand up against his demons. He must fire Kamoli and have Kamoli’s soldiers who have been shielded from the criminal justice system arrested. His conundrum is real! It is however a self-inflicted wound.

Legitimizing an Attempted Coup

Mosisili’s double fears must be properly understood. His first fear, is that of Kamoli.  When in August 2014, Kamoli made a concerted attempt to stage a coup which was bound to fail as a result of the South African government’s stance, the stage was set for long-term confrontation with whatever government that came in power in Lesotho. Kamoli’s coup did not succeed, and he stayed in power by force of arms after his dismissal. He was ultimately coaxed to go on what was called a leave of absence outside the country until after the holding of the 2015 elections by Cyril Ramaphosa under the Maseru Security Accord.

Two developments are important here in order to understand the Prime Minister’s dilemma at present. When Kamoli was fired by then Prime Minister Thabane, his Deputy, Mothetjwa Metsing, immediately went on Lesotho Television, popularly known as “TV Monga eona”, and declared that he does not recognize Kamoli’s dismissal because he was not consulted. The issue however was not about consultation, but about the constitutional right of the Prime Minister to fire the Commander of the LDF. Similarly Sekhamane, present Lesotho Foreign Minister, publicly threatened a bloodbath should an attempt be made to get rid of Kamoli.

After Prime Minister Mosisili came to office in March 2015 he thanked the military for ensuring that he was back in power. Since then he has on several occasions publicly backed Kamoli and reiterated his gratefulness to the army for supporting him. The question however has always been whether an armed man who has previously virtually taken a government down could ever be controlled by any successor regime. This is essentially the foundation of Mosisili’s fear. Could Kamoli also do to him what he did to Thabane?

Mosisili also has to contend with the fear of the potential alliance between Kamoli and his coalition partner, LCD, which no longer has any significant following in the country but is firmly ensconced in the army. With Mokhosi as Defence Minister and Metsing as Deputy Prime Minister, like he was under Thabane, Mosisili has to constantly wonder whether they could remove him in power at the time of their choosing. The constant declarations by Mosisili that he trusts Kamoli are essentially an indication of his insecurity.

Mosisili’s fear therefore is that both Metsing and Kamoli could overthrow him even though he actively abetted the attempted coup and the unconstitutional refusal of Kamoli to leave office when he was fired. Bringing back to office of Kamoli therefore was logical and inevitable, because of fear of his retribution if he was ignored.

SADC Demands on Mosisili

In its Summit in Gaborone in January 2016 SADC in an unprecedented move, demanded that Kamoli must be fired and that all those implicated in the treasonous activities of August 2014 be brought before the courts; those who have committed murder and have been shielded by Kamoli must be suspended and brought to the courts to answer for themselves; the exiled Basotho should be brought back to the country, particularly the leaders of the opposition political parties; and the freeing of the detained soldiers in line with the recommendations of the Phumaphi Report.

In a follow-up meeting between Mozambican President Nyusi, Chairman of the SADC Organ on Politics Defense and Security and the Lesotho delegation led by Deputy Prime Minister Metsing, the situation was put bluntly to the Lesotho delegation.  Lesotho has a deadline to implement the decisions of SADC. Failure to comply will lead to serious consequences. Needless to say that  Metsing was told in no uncertain terms that there are no two ways about the matter. Lesotho has to implement the decisions. In conclusion, Nyusi informed the Deputy Prime Minister “…..the Chairperson stressed that in line with the 18^th January 2016 SADC Double Troika Summit decisions, in the event that there is no progress on the above issues, SADC will consider convening a Double Troika Summit to deliberate on the matter.” This is not an ordinary statement. It is unambiguous and those who attended the meeting knew that it was an indication that SADC is focused on accountability. An external element of the fears of Mosisili has now been made clear.

Mosisili’s fears are however not only confined to what steps SADC will take. Two related issues are ever looming in the background. First, is the possibility of losing even more international funding from external sources in addition to the withdrawal of budget support by the EU which has recently been announced.  Second is the possibility of losing an even bigger chunk of money from the US under the MCC which had made the implementation of the Phumaphi Report recommendations a condition for considering Lesotho’s application. Without the dismissal of Kamoli, there is no chance of Lesotho being granted the funds.

Will Mosisili Break the Deadlock?

The issue at hand is that Mosisili has created a conundrum for himself. He brought Kamoli back from the cold and he is now fearful of any action which he might take. He fears both his Deputy and Kamoli. At the same time he fully knows that he cannot defy SADC. Lesotho meantime grinds to a halt while Prime Minister ponders his next move.

It is accordingly not surprising that for almost a month Mosisili has disappeared from the scene. The last time Basotho have heard about him and his whereabouts was when he was reported to have gone on a two week holiday in India. But whether he is still in India or ensconced at State House, his conundrum awaits him. He has to take the chance to dismiss his ally or else he has to face up to the furious SADC leadership which will meet after 31/03/16 to decide how to implement the decisions with or without him. I wish him well!

Professor Mafa M. Sejanamane

For sometime now the state of human rights in Lesotho has been appalling. One only needs to glance through Lesotho High Court records on habeas  corpus cases where several detained Lesotho Defense Force (LDF) soldiers have narrated harrowing stories of beatings and torture to understand the magnitude of the problem. Several cases have been heard and judgements made to release detained soldiers, but all those have been ignored. A big challenge to the rule of law. The point here however is that there is an environment of intimidation and threats against the lawyers who have been representing the detained soldiers. Indeed one of the lawyers for the detained soldiers has now fled the country for fear of his live. The arrest of Khotso Nthontho, a lawyer for some of the detained soldiers on an alleged perjury case in a case at the Court of Appeal, spurred Lesotho Lawyers for Human Rights (LLHR) to make a statement condemning the arrest and the environment of intimidation that prevails in Lesotho.

In a statement signed by its President Z.Mda (KC), the LLHR condemned the arrest of Nthontho and went further to point out that one of the Colonels in the LDF had told the lawyer’s clients a few days earlier that he was going to be arrested. The statement went further to point out that “..The above facts speak to the low and despicable level to which some elements and handlers within our society have sunk in their relentless pursuit of a project to undermine the rule of law in the misguided belief that the savior of democracy and justice is in the bullet and not the ballot.”

Signing off as Rt. Honourable Lt. General Kamoli Commander LDF, Kamoli could not hold himself. He wrote to LLHR accusing it of disrespecting authority and arguing further that the statement only mentions two lawyers who may have been affected, while there over hundred lawyers in Lesotho. He complained that the statement was meant to besmirch the good name of LDF.   Kamoli’s letter was largely one which was meant to intimidate LLHR but that was not to be so.

In a sharp rebuttal, Mda wrote to the Commander LDF on the 10th March 2016 addressing largely two things: the substantive issues raised by LDF; and also  the arrogation  by Kamoli to himself  of the title of Right Honourable which in Lesotho is only used by the Prime.  On the substantive issues, Mda points out that LLHR statement was focused on condemning unwarranted attacks on lawyers, and is less concerned on how many have been attacked. Lawyers’ calling he argues is to resist tyranny and fascism. “It is of pivotal significance that, as lawyers we were taught to respect the law, not be afraid of authority and to exact accountability from those who exercise public power. Thus we are respecters of no man but the law. If you feel lawyers have been given license to insult those in authority under the pretext of promoting and protect in Human Rights clearly there is a strong case for the submission that you are not fit to lead an institution whose function includesprotecting democracy and the rule of law”

The letter is a major rebuke to the powerful LDF Commander who is generally feared. It also goes  on  to address an equally important matter of titles. Kamoli, in his communications refers to himself as Right Honourable, a title which only the Prime Minister uses in Lesotho. For whatever reason he has arrogated that to himself. It is perhaps an indication of the reality of power in Lesotho. The Commander of LDF is practically the one who is in charge of the government. Mda’s letter to Kamoli pointedly expresses dismay that “…you have arrogated the title: THE RIGHT HONOURABLE  to yourself and also having the audacity to copy the letter with this venerable title to The Right Honourable The Prime Minister.” The letter points out that LLRH there is no precedent the whole World where a soldier however high  in rank is referred to as the Right Honourable. LLHR, Mda argues, does not recognise nor accept Kamoli’s useof  that title as it is by convention constitutionally assigned to the Prime Minister.

We in lesothoanalysis subscribe to both the substantive issues raised by LLHR and also the misuse of titles. Titles matter a lot in general and in Lesotho in particular. I’m afraid that this unpreceded rebuke to Kamoli has come late, but it is a welcome move indicating that fear is being put aside by our people.  Kamoli had no standing to issue a statement on a non-military issue. The government should have responded to the statement if it was irked by it, not Kamoli.

Professor Mafa M Sejanamane

Background

The Lesotho crisis which has had to be attended by SADC and other international actors has been ongoing for over twenty years. There have of course been brakes here and there, but fundamentally, there has not been stability in the country. That is to say that Lesotho has not been able to run its affairs without outside intervention and assistance for all that period. Failure by the Lesotho elite has often been attributed to the inability of the economy to generate resources hence the scramble for control of state power as a way for some people to make a living. That may be the foundation, but the most immediate triggers of the crisis have been the constitutional provisions which have not provided for strong institutions which would counterbalance the powers of politicians. In addition, the existence of an unprofessional and politicized army have been at the root of the Lesotho crisis.

The present phase of Lesotho crisis however should appropriately be traced to the 2012 election results which did not produce an outright winner leading to the formation of a narrow and unstable coalition. But what made the situation worse was the coalition agreement itself amongst the three political parties (All Basotho Convention; Lesotho Congress for Democracy and the Basotho National Party).  Rather than to agree to share power as is normal in coalitions around the world, the three parties decided to come to a semi-feudal arrangement whereby they would share government Ministries and Embassies around the world. They thus created a situation where there was no central authority unifying all but each coalition partner tended to think it “owned” the Ministries they controlled in spite of clear stipulations in the constitution whereby the Prime Minister superintends on all. This led to a situation where in practice Lesotho did not have a central government from the date the coalition came into to office, but the country was subjected to an anarchic semi-feudal order.

Dramatically the crisis came to the fore early in 2014 when an army rebellion, which was fueled by the semi-feudal order which had emerged, became apparent. The first phase of this rebellion showed itself through wanton disregard of civilian authorities’ orders as will be discussed below. Though those signs are many and related, for purposes of this, mention will only be made of three significant ones. They are the utterances of one captain Hashatsi to the Special Forces early in January 2014. Hashatsi, is reported to have told the Special Forces that Lt. General Kamoli, Commander of the Lesotho Defense Force cannot be removed from office by anybody when he is still alive. He repeated this while giving evidence to the Phumaphi Commission of Inquiry set up by SADC in 2015. The second indicator of the rebellion was the suspension and court martial of Brigadier Mahao for reprimanding Hashatsi. Military discipline everywhere allows senior officers to reprimand junior officers. The third indicator was the defiance of the Lesotho Defense Force (LDF) Command to the instructions of the then Prime Minister, to stop the Court Martial. They continued with the Court Martial and ultimately the Prime Minister gave in and withdrew his letter.

When then Prime Minister Motsoahae Thabane in August 2014 removed Lt. General Kamoli as Commander of the LDF it was already too late. The rebellion had matured and an attempted coup was staged and the Prime Minister fled to South Africa and could only come back under SADC security detail until the holding of elections in February 2015. Important here to note is that during the elections, SADC had to deploy additional forces in Lesotho and also decided that the army should be in barracks during the elections. When shortly after the coming to power of an even more fragile coalition of seven political parties, SADC closed its Mission in Maseru, it was obvious that the only powerful force in Lesotho would remain the LDF. The closure of the Mission perpetrated a long standing fallacy that elections themselves can resolve the questions of instability, even without dealing with security crisis which had brought SADC in Lesotho in September 2014.

The Return of Kamoli and Consequences for Lesotho

Shortly after the coming to office of the new coalition government in Lesotho, a concerted attempt was made to dismantle the whole administrative structures which had come into being in the previous government. It was about removing all senior personnel who had been appointed under the previous regime. When it came to the security structures, it meant the removal of both the Commander of the LDF and the Commissioner of Police in favour of those who were aligned to the new order. It did not however end there. It ended with the wholesale detention of most senior army personnel who did not flee the country; it also ended with the fleeing of all the leaders of opposition political leaders from the country; but more significantly it ended with the daylight murder of Lt General Mahao who had just been relieved of his command of the LDF in favour of Lt. General Kamoli who had been removed earlier. This as will be shown later was in itself a destabilizing factor.

SADC dispatched a Fact Finding Mission to Lesotho made up of political and security personnel headed by South Africa’s Minister of Defense and Veterans Affairs Nosiviwe Mapisa-Nqagula to investigate the situation.  Her report to SADC was chilling. She reported that the instability in Lesotho has reached a stage where it would endanger regional security. An Extraordinary Summit of the SADC Double Troika was convened in Pretoria in July 2015 to consider the situation.  It is in these circumstances that SADC established the Commission of Inquiry headed by a Botswana Judge Mphaphi Phumaphi to investigate the whole instability issue in Lesotho and in particular the circumstances of the murder of Lt. General Mahao.

The recognition that the closure of the Mission in March 2015 was premature, though not explicitly expressed, was the underlying factor in all these activities by SADC. This was also reinforced by the report of the SADC Facilitator, Cyril Ramaphosa,s final report which recommended constitutional, public sector and security reforms as a way of ensuring that a stable environment can be created in Lesotho.

The Phumaphi Commission and the Future

Key issues which the Commission was mandated to investigate were the circumstances leading to the shooting of Mahao; assist in the identification of any perpetrators with a view to ensuring accountability for those responsible for the death; and also to investigate the alleged mutiny plot.  Over two months, the Commission was able to hold open and closed hearings on the goings on in the country, particularly in the LDF. Horrific stories about plots, bragging about impunity, and other crimes like murder and torture were heard. But not unexpectedly almost all witnesses from the government who gave evidence refused to provide the Commission with useful information which could lead to the identification of perpetrators of Mahao’s murder. Those in the LDF argued that they don’t want to incriminate themselves on the one hand and on the other, that they were involved in an approved operation and are bound by operational secrecy.

The Phumaphi Commission in spite of these obstacles was able to find witnesses and came to definite findings and made recommendations to SADC. Amongst the Findings, are the following:

1. Appointment of Lt. General Mahao was legal and he did not resist arrest as was alleged;
2. The Commission established that some suspects of the mutiny were tortured with the view to have them confess to mutiny and implicate others. The alleged mutiny, it could therefore be concluded, might  be a fabrication;
3. The reappointment of Lt. General Kamoli perpetuated the divisions within the LDF as he vowed to deal with those who had celebrated his removal;
4. The fleeing of opposition party leaders after Lt. General Kamoli’sreappointment and subsewuent parlimentary boycotts by the opposition is a manifestation of instability.

The key recommendations made by the Commission are that Lt. General Kamoli must be relieved of his Command of the LDF; and all the members of the LDF who are suspects in cases of High Treason; murder and other crimes which have been pointed out in the Report should be suspended while their cases are investigated and they are brought before the courts.  For the first time in the period of instability in Lesotho, a  credible and independent body identified and recommended that the impunity that has characterized the operations of the LDF has to be brought to the end.

The Phumaphi Commission therefore has pointed the future of Lesotho. It has focused its attention to many years of destabilization of the country by LDF and the complicity of some politicians in perpetuating the situation. If the immediate issues around impunity are dealt with there is hope that other long-term challenges will be overcome. More importantly, the Commission also supported the recommendations made by the SADC Facilitator for constitutional, public sector and security reforms.

In its Summit of Heads of State and Government in January 2016 the Double Troika Summit received and endorsed the Report of the Commission of Inquiry. This means that both the short-term recommendations and the long-term are expected to be implemented. Though the Communique was precise and specific on the establishment of timelines for reporting back, it was always clear that there would be attempts to delay the implementation. The question was always whether SADC would be sufficiently persistent to ensure that its will triumphs despite the reluctance of the government. Throughout this period, the government’s stance was always that the Commission’s recommendations were not compulsory. The contrary was true, after the endorsement of the Report by SADC.

Will SADC Succeed in Lesotho?

As already pointed out above, there have always been two views about the outcome of the Phumaphi Commission. At the very beginning of the work of the Commission, Lesotho’s Minister of Police, Moleleki in a press conference held by the Prime Minister, argued that in terms of Lesotho laws, the recommendations of the Commission were not binding. The Prime Minister went further in a statement later in parliament that some of the recommendations may not see the light of day. The question, throughout was whether it was legitimate for a government to protect murderers of another citizen? Would the resistance to implement the recommendations not indicate that those who murdered Mahao and those who have commited other crimes pinpointed in the Phumaphi Report not indicate official sanction of criminality?

The other view of the status of the Phumaphi Report was that it was binding on the government. The Commission was, the argument goes, established in terms of international agreements in Southern Africa. The SADC Treaty and Protocols clearly spell out that the decisions of the Summit are binding. In several contributions whose links will be made available below, I and others have dismissed the argument based on Lesotho’s sovereignty and pointed out that Lesotho cannot violate international law and protect itself with arguments of sovereignty.

At least two attempts to block or delay the implementation of the recommendations have been made and both have failed. First, Hashatsi who has identified as one the suspects for the murder of Mahao lodged an application in the Lesotho High Court attempting to have the Commission dissolved. The first applicant was the Prime Minister, who unsurprisingly did not respond to the application. The Prime Minister from then onwards declared at every opportunity that he would not accept the Phumaphi Report until the Hashatsi matter was completed in the High Court.  In its Summit of January 2016 the SADC Summit categorically rejected the Prime Minister’s arguments and when he resisted, to receive the Report, the Summit was firm. The prospect of suspension of Lesotho from SADC was raised. But even more significant, South African President Zuma told the media that the Report would be published and implemented on behalf of Lesotho if the Prime Minister did not change his mind. In a similar manner, Mozambique President who is also Chair of the SADC Organ on Politics Defense and Security reiterated the same point. It was not surprising therefore to find that the Prime Minister changed his mind and received the Report only to have its publication delayed and some of the names of suspects removed before he had it published.

The latest tussle with SADC was equally disastrous for the Lesotho government. A delegation led by the Deputy Prime Minister, Metsing, went both to Botswana and Mozambique with a view to lobby that some of the recommendations be delayed, was a failure. In the Record of the meeting in Maputo attended by President Nyusi and the Executive Secretary of SADC it was categorically made clear the decisions of the Summit in Gaborone should be implemented. One of the decisions in that meeting spells out that the Government of Lesotho will “ ..Immediately implement the recommendations of the Commission of Inquiry, and submit progress report thereof on each recommendation with a clear roadmap and timelines, in line with the decisions of the 18^th January SADC double Troika summit. The progress report should be submitted by Friday, 4^th March, 2016.”

What is clear is that SADC is determined to have its will prevail. Lesotho government may wish otherwise, but it has to implement the decisions of SADC.  Two things are also significant here. The record indicates that SADC is aware of the potential damage of its credibility if it does not ensure compliance. The repercussions would be serious.  SADC has also indicated that “in the event that there is no progress on the above issues, SADC will consider convening a Double Troika Summit to deliberate on the matter.” This is blunt and clear.  SADC is now in a position to unlock the longstanding Lesotho Logjam.

Professor Mafa M. Sejanamane

Relevant links:

http://lestimes.com/advertise-with-us/

http://thepost.co.ls/an-attempt-to-emasculate-sadc-commission/

http://sundayexpress.co.ls/the-day-sadc-declared-war-on-impunity/

http://lestimes.com/professor-mafa-m-sejanamane/

http://lestimes.com/sadc-struggle-for-order-and-accountability-in-lesotho/

Over the past four years, Lesotho has been undergoing a deepening political, economic and security crisis. This has manifested itself in many ways but the following are a few indicators. First, in August 2014 an attempted coup took place which ended up with the Prime Minister fleeing the country and only coming back to the country with a SADC security detail; second, an early election was called upon by SADC with the hope that it would resolve the political and security problem caused by the collapse of the first coalition government Lesotho has had. This did not. On the contrary a new coalition made up of seven political parties was formed after the elections and the security crisis which had existed before became worse. Finally, SADC was forced once again to intervene in Lesotho after the assassination of the former Lesotho Defense Force Commander Lt. General Maaparankoe Mahao by elements of the army and the fleeing of all opposition political leaders. A SADC Commission of Inquiry was established and later reported to the SADC Double Troika, making damning findings which now have to be implemented.

This  was the seventh time the regional body had to intervene in Lesotho. My argument is that in most of its interventions in Lesotho, SADC took half measures with the hope that the unstable member would have learned from the mistakes of the past. These half measures were also a result of misinformation by the successive governments in Lesotho, which at times depended for their survival on an unstable environment. In addition, there has been a serious paucity of analysis on the Lesotho situation. Local and regional analysts have dealt with the issues sporadically and at times opportunistically. This has been Lesotho’s dilemma.

This site, intends to close that gap by providing detailed analysis regularly using the best available scholarship in Lesotho and the region. We intent to create a powerful forum for debate on Lesotho’s present and future. This site will also seek to bring in the emerging scholars and young people to debate and raise critical issues which people of my generation may be missing. It is meant to be a serious site, even though issues which are of concern to our younger people will also be dealt with.

I will welcome critical comments from our readers. The site will however not be used to hurl insults to those readers don’t agree with. It will be site for debate and not for screaming!

Enjoy the ride!

Professor Mafa M. Sejanamane

For in depth analysis on various developmental issues in Lesotho, please keep login from time to time as I will be busy giving you the latest.