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 18th January SADC double Troika summit. The progress report should be submitted by Friday, 4th 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

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