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June 2016

Why Impunity Should not Succeed: SADC Double Troika Summit on the Lesotho Crisis

Overview

On Sunday 19th June 2016, under the auspices of #BreakingtheSilence, spouses and children of the detained and exiled soldiers and those of the murdered former Commander of the Lesotho Defense Force (LDF), staged a march in Maseru to remind the public of their plight stretching for a year. Their suffering is a result of the following circumstances.

1.      Early 2015, some soldiers were ambushed and seriously injured by their colleagues close to the Royal Palace. At least two of those were seriously injured and were rushed to South Africa for urgent medical attention. Their lengthy stay in South Africa began their exile.

2.      Another batch of soldiers were detained and severely tortured at the Sedibeng Military Facility for up to a week until they were brought to the Lesotho High Court as a result of habeas corpus applications by their families. They showed serious signs of torture. Brought to court in leg shackles by heavily armed soldiers who refused to answer any questions under the guise of military operational commands except that one Captain Sechele declared himself the Operational Commander in rounding up the detained soldiers for mutiny.

3.      Another batch of soldiers fled to South Africa between April and June 2015 fearing detention and inhuman treatment like that meted to those of their colleagues held in Setibing.

4.      Part of the army crackdown on those soldiers who were targeted was the former Commander of LDF, Lt. General Maaparankoe Mahao who was waylaid in broad day light and murdered in Mokema, about 20 KM out of Maseru by the same group which Sechele announced he was leading.

Both the spouses and the children of all the above victims, narrated horrific experiences of brutality meted to the detainees that they observed and were informed by the latter. They also narrated their deprivation of spousal and parental companionship by the continued detention of over one year by their detained husbands/fathers for one group and exile for the same period by another group of soldiers. The children of the murdered former Commander of LDF related their permanent deprivation of their father. But more horrific, the younger of those children of about twelve years related the ultimate torture he experienced, when the killers of his father, who had confiscated the latter’s mobile phone, used the same phone number of his father to call the child. It is absolute horror meted to a young child.

If anything, listening to those children, some younger than ten years, has left in all those who value human life a deep sense of injustice and inhumanity that Lesotho has descended to. That experience has given me a voice to publicize their fate and hope that international voices will prevail and those in detention given their freedom and those in exile be safely brought back to their children. But more importantly, it is hoped that the perpetrators of these horrific crimes will be made to account. That is our expectation, despite the stance of the government, as Prime Minister Mosisili says in his statement to the National Assembly calling for amnesty for those who have been fingered to have committed crimes.

SADC Intervention

From July 2015 SADC has been so preoccupied with the Lesotho crisis leading to no less than four meetings of the Double Troika and two Summits of Heads of State and Government. With the above developments in mind, SADC established an International Commission of Inquiry to investigate the perennial instability in Lesotho and in particular the circumstances surrounding the murder of Lt. General Mahao. Led by Justice Phumaphi from Botswana, and made up of eminent personalities in politics, law, military and police from the SADC region, the Commission completed its work and submitted it to the regional leadership in November 2015. The report was received and endorsed by the SADC Summit of Heads of State and Government in Gaborone in January 2016. The Phumaphi Commission made findings and recommended accountability as one of the key elements of the solution of the Lesotho crisis. This was the first International Commission set up by SADC to investigate issues which would ordinarily be regarded as internal affairs to any of its member states.

Amongst other key decisions emanating from the Phumaphi Report, the Summit decided that Lt. General 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 other heinous crimes but have been shielded by Kamoli must be suspended and brought to the courts to answer for themselves; exiled Basotho should be brought back to the country securely; and that detained soldiers must be freed under an amnesty. In essence, and without saying so, these decisions by SADC mean that the whole criminal venture whose head office is within the LDF barracks be dismantled. Without a complete dismantling of this group, there can never be peace and security in Lesotho.

At the centre of all the above findings and recommendations by the Commission is the effort to bring an end to impunity. For several years as the table below will indicate, the LDF had flouted the law and denied by force of arms accountability by its members who became a law onto themselves. Most of the cases referred to above were investigated, but the suspects and their weapons were kept out of reach of the investigators. In one of the sittings of the Phumaphi Commission, one Colonel Sechele who declared himself as the Operation Commander in the round up of the soldiers who were detained and the murder of Lt. General Mahao, pointedly told the Commission that no soldiers would be handed to the police.

LDF and Lawlessness

Annexure 9 of the Commission’s Report shows the cases which the LDF members have allegedly committed but have avoided to answer their cases in court. The table below shows a sample of serious crimes which have gone unpunished from 2012 as a result of the stance of the LDF Command that its members cannot be subjected to the law of the land like any other citizen. But more importantly, is the fact that several letters were written to the LDF Commander by two successive Commissioners of Police to release the suspects. Several summons and warrants of arrest have been issued but could not be enforced.

Police Station CIR NO Offence Suspects Rank Status of Investigation
Morija 673/01/12 Attempted murder Warrant Officer and three privates No progress
Mohale 03/04/12 Murder, attempted murder, malicious damage to property Not stated No progress
Mafeteng 30/04/12 Murder 2nd Lieutenant and 4 privates No progress
Mokhotlong 274/06/13 GBH 4 privates No progress
Thamae 146/06/14 Murder, attempted murder and malicious damage to property Lance Corporal and 2 privates No progress
Maseru Central Police Station 616/10/12 GBH, malicious damage to property, and sexual offenses 3 Lance Corporals No progress
Maseru Police Headquarters 2535/02/15

 

Murder Not shown No progress

 

Maseru Police Headquarters Bombing of three houses (27/01/2014) Brigadier, 2 Captains, 3 Second Lieutenants, and a  Major No progress
Maseru Police Headquarters High Treason Lt. General, 2 majors, Captain, 2 2nd Lieutenants, Corporal and a lance corporal No progress

The above table indicates the level of impunity that pervades the LDF. But more importantly, whether by coincidence or otherwise, more than 90% of the suspects in the cases referred to above have now been promoted and with some of them skipping ranks. It is clear that the suspects are well protected and are being rewarded rather than being made to account for their actions. Surprisingly Prime Minister Mosisili in one army pass out parade expressed his gratefulness to the military for ensuring that he regained power. We are thus not surprised by inaction to bring the suspects to the courts of law.

Advocating Impunity

Ahead of the Double Troika Summit in Gaborone on 28/06/2016, Prime Minister addressed the National Assembly on the implementation of SADC decisions. Three issues came to the fore.

1)      On relieving Kamoli of his Command, he complained that the Phumaphi Commission’s findings were baseless and not based on international standards. He however conceded that it is impossible to retain him because of domestic and international pressure. He accordingly would negotiate with him on an amicable separation.

2)      On the murder of Lt. General Mahao, he indicated that the police have been instructed to investigate the matter and the Director of Public Prosecution (DPP) would ensure that the matter is handled in line with existing processes. Mosisili did not however indicate how he would ensure that the weapons which were used to kill Mahao and the vehicles which were used to carry his body from the murder scene a year ago were handed over to investigators. Moreover he did not indicate how the apparent collusion and complicity of government structures with the killers would be erased in the minds of the family concerned. Lack of trust in both the police and the DPP’s office are such that it would be virtually impossible for the family of the deceased to believe that the case would be handled in manner that would lead to a fair verdict. The Phumaphi Commission after experiencing the broken nature of the Lesotho criminal justice system recommended that the investigations should be undertaken vigorously and that the police must be resourced. The resource can only be through independent investigators who will be under supervision. Without that justice is likely to be perverted.

3)      Prime Minister also addressed the question of detained soldiers who have been languishing in the Maximum Prison for over a year. He indicated that rather than providing an amnesty to those detainees alone, he would explore how to include those who were identified in Annexure 9 of the Phumaphi Report. It must be remembers that one of the key pillars of the report endorsed by the Double Troika was the issue of accountability. It is clear according to Mosisili that the perpetrators of crime must be given equivalent treatment to the victims of crime.  It must be remembered that some of those detainees have been tortured over a long period and others have been in exile and not even received their salaries. It is absurd therefore to treat people who have suffered so much with those associated with murder of civilians, a police officer, and a former Commander of the army. The table above shows that crimes have been conducted at all levels of the LDF.

Impunity would set a very serious precedent to serving military officers. It would say to them that if you don’t want a certain civilian administration, you must resist it long enough; kill a number of people as an intimidation mechanism; set bombs in some houses; and kill any policeman or soldier who does not fall in line.

Finally it must be clear to everybody that the whole criminal justice system in Lesotho is broken. In order to ensure that there is no impunity, the investigations and prosecution of the suspects in the cases above, should be under SADC supervision.  Any other route will lead to rigged trials. The perpetrators will go free and that will create a fertile ground for revenge in the future.

In addition, we caution against an amnesty for people who have committed these heinous crimes because it will perpetuate instability in the country. Amnesty for crimes like the above would amount to inflicting additional pain on the victims and their families. We hope the Double Troika Summit in Gaborone will exercise caution and refuse to be hoodwinked to condone murders and treason in Lesotho.

 

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The Mokhosi Doctrine: “I Don’t Know/It Didn’t Happen” Thesis

It is over a year now since Prime Minister Mosisili ascended to power in Lesotho in the midst of the security crisis which had not been resolved by the early elections which had just been held. For some, elections were seen as the solution to the crisis. But the main issue in Lesotho was not a political or constitutional crisis, but the country was in a security crisis which was driven by the rebellion in the army. Needless to say that some in our region believed that elections was a magic wand which would get rid of all the troubles. Elections did not! On the contrary the rebellion was crowned by the appointment of Mokhosi as Minister of Defence and National Security. Mokhosi was, as we well know, not intellectually and temperamentally suited to lead such a key sector. He, as will be shown below would be an agent of the rebellion, providing the cover for actions of those in the military who are really in charge of the state in Lesotho. A civilian cover was convenient lest, people see that the military is in charge.

One of Mokhosi’s first actions was to announce, even before the gazette terminating the command of Lt. General Mahao was issued, that the rightful commander was Lt. General Kamoli. Indeed shortly thereafter Mokhosi actively canvassed that issue and it was ultimately done a short time after he had assumed duty. The reappointment of Kamoli as Commander of LDF coincided with the mass detention and torture of soldiers who were alleged to have mutinied. It let to over twenty other soldiers fleeing the country for fear of their demise in the revenge by Kamoli and his loyalists to those who are said to have rejoiced over his dismissal by the previous government. But more importantly, it let to the cold blooded murder of Lt. General Mahao by heavily armed LDF members in three vehicles in Mokema on 25/06/15. It is largely because of this that this post is evaluating Mokhosi as a cover for impunity for murder and other crimes within the LDF.

A ministerial role in any government is a serious responsibility requiring people who don’t sleep on the job. It is also a position which requires people who can think clearly and also take responsibility for actions of those below them in the Ministry. This is not what we have observed about Minister Mokhosi. Three or so of his actions and/or inactions will illustrate that. In his testimony to the Phumaphi Commission which was established by SADC to investigate actions of the military, ostensibly under his control, Mokhosi showed clearly that he was either unable to grasp his responsibilities as a minister under the law, or he was clearly sleeping on the job.

He testified that intelligence was received that there were some army officers and soldiers who were plotting mutiny and killing of soldiers. The matter was reported to the Acting Commander of the LDF Major. Gen. Motsomotso who in turn reported to him on the 13th May 2015. Mokhosi testified that he sanctioned the LDF to investigate the matter, and testified that after about three (3) days it was verbally reported to him by the LDF that some serving members of the LDF had been arrested.  Questioned what information was presented to him and how the matter was being handled, his answer was that he did not know how and by whom the mission to deal with the alleged mutiny was being handled. He had a standard answer. “That I don’t know my Lord. It was an army matter”. The answers were clear, that the army had been given a blank cheque and the Minister was ignorant of the issues of accountability. On an important issue like that, Mokhosi only had a verbal report.

When some of the soldiers began to be rounded up and tortured Mokhosi did nothing to ensure that detainees were treated in line with international humanitarian law. He denied in several interviews that there were any soldiers who were tortured. When families of the detained soldiers applied for habeas corpus and some soldiers were brought to the court in shackles and dripping blood Mokhosi still denied there was any torture meted to those soldiers. This is in spite of visual images which were taken when those soldiers were in court. He also had his standard answer about some of those detainees on chronic medication who had not been able to access their medication. “It did not happen”. He also denied that there was ever any intimidation of journalists, family members and court officers, even though all these were documented.

Mokhosi’s bizarre behaviour did not end there. In his testimony to the Phumaphi Commission, Mokhosi denied knowledge that Lt. General Mahao was under investigation and that there was a mission to detain him. The first time he knew about that case, he claimed was when he was informed about his death.

 

In his evidence the Minister informed the Commission that he only learnt of Brigadier Mahao’s alleged involvement when Lieutenant General Kamoli informed him that Brigadier Mahao had been shot and later confirming his death. During cross examination, the Minister stated that he was informed that Brigadier Mahao was the last person to be arrested, however, this statement by the Minister contradicts that of Colonel Sechele who indicated to the Commission that arrests are continuing and that they are still going to continue, even after the Commission had finished its work. (Paragraph 50: Phumaphi Commission Report)

Not only was Mokhosi shown to be sleeping on the job, but he was shown to be held in utter contempt by one of his underlings who contradicted him on one of the critical issues about the murder of Mahao. But more importantly, Mokhosi could not even remember what he was doing in the office when such a dramatic development of the murder of a former Commander of the LDF took place. Is it probable that a Minister of Defence and National Security would forget what he was doing on such a significant development in his Ministry? Could it be that he took the murder as a routine occurrence?

It has often been said that over time people improve in their given tasks. Not with Mokhosi. He has now been in office for over a year, but still does not seem to understand what his role is. In June 2016, through their “Breaking the Silence” Campaign the children of the detained soldiers launched a plea for support as they march against the continued detention of their parents. In retaliation, the military according to the families of the detained soldiers and their lawyers, denied the detainees of food and medication. The army demand that they should instruct their children to abandon their campaign. For more than twenty four hours, the detained soldiers went without food and medication. Mokhosi denied that anything like that happened. He, without any investigation, boldly announced that the military have informed him that nothing like that has taken place. His responsibility to account after an investigative process are non-existent. He relies on bedtime stories by perpetrators of crimes that they haven’t done anything wrong. Mokhosi has no clue what a ministerial responsibility is.

Mokhosi goes further in his outbursts to provide cover for the military by blaming the delay to complete the court martial cases on the lawyers defending the detainees. He claims that the lawyers are driven by greed. The longer the cases go on the more money they get. He says all these things without a shred of evidence. His is a case of a person who is programmed to say “I don’t know. It never happened or the whole world is lying. Kamoli is the only person who knows.”

I don’t live in Mokhosi’s world of denial, I support the “Breaking the Silence” and will be marching with those long suffering children who have been denied the companionship of their parents for over a year. The struggle may be painful, but for the sake of the future of the young ones, I am prepared for anything.

An Approach to Constitutional and Institutional Reforms in Lesotho

Overview

When SADC completed its Observer Mission in Lesotho in April 2015, it made a number of comments on Lesotho’s some of the sources of Lesotho’s instability. The Mission later wrote a number of observations and recommendations on the way forward. The recommendations contained in the “Proposal on Constitutional and Institutional Review for the Kingdom of Lesotho” prepared by the SADC Observer Mission to the Kingdom of Lesotho (SOMILES) headed by Cyril Ramaphosa, Deputy President of South Africa have not been widely discussed. The report compiled by a Team of political and security personnel identified key issues contributing to the instability environment in Lesotho.

The substantive issues in the report are not a subject of this piece. Briefly, the substantive issues in the Report, talk to issues about the constitution on how power has to be exercised and by whom. It also observes that security and public sector reforms are imperative if Lesotho is to move away from its perennial instability.

The focus here is the how question which seems to be the neglected part of this debate by most of those who have commented on the Report. It is obvious to me that important though the substantive issues may be, the process is even more important. When one travels to some place, they must chart the route lest they fall into the cliffs because of the one sided focus on the end of the journey. The SOMILES proposals themselves hardly touch on this crucial issue. In the only paragraph where it touches on the process, it correctly articulates the fact that credibility of any constitutional reforms is dependent on citizens’ participation.  The report observes:

Any constitutional review process needs to be embarked on through a process that will be seen to be legitimate and credible by the populace. It has become a generally accepted practice worldwide in constitution making processes that such projects must include an interactive platform between the government and its nationals. It also functions as an empowerment process where the government gives its people the right to decision making. Constitutional review is no ordinary law-making process and often requires the adoption of extraordinary processes.

Regrettably it goes no further. Brief though this is, it is suggestive that constitutional reform is not and cannot be unilateral. In Lesotho this is even more important because of the sheer numbers held by the opposition in parliament. But even more importantly, a glance at the actual votes cast for four of the members of the present coalition government who became entitled to a ministerial position by virtue of the coalition agreement indicates that unilateral action would not be credible. Only National Independence Party (NIP), actually qualified to get a seat in parliament. While the quota for a seat was 4,600 votes, those political parties scored far below that with the Lesotho Peoples’ Congress (LPC) scoring less than 2,000 votes. This is largely a result of the constitutional deficiency in Lesotho which fixes parliamentary seats at 120, with no overhang as in Germany and New Zealand where the Mixed Member Proportional (MMP) model was borrowed from. The table below shows the electoral performance of the political parties in the 2015 National Assembly Elections.

Party Votes Seats
No % Constituency Compensatory Total %
Democratic Congress (DC) 218 573 38.76 37 10 47 39.17
All Basotho Convention (ABC) 215 022 38.13 40 6 46 38.33
Lesotho Congress for Democracy (LCD) 56 467 10.01 2 10 12 10.00
Basotho National Party (BNP) 31 508 5.59 1 6 7 5.83
Popular Front For Democracy (PFD) 9 829 1.74 0 2 2 1.67
Reformed Congress of Lesotho (RCL) 6 731 1.19 0 2 2 1.67
National Independent Party (NIP) 5 404 0.96 0 1 1 0.83
Marematlou Freedom Party (MFP) 3 413 0.61 0 1 1 0.83
Basutoland Congress Party (BCP) 2 721 0.48 0 1 1 0.83
Lesotho People’s Congress (LPC) 1 951 0.35 0 1 1 0.83
Others  see below 12 353 2.18 0 0 0 0.00
Total 563 972 100.00 80 40 120 99.99

Table source: http://www.electionpassport.com/files/LS/LS.xlsx

 

With the seats as they are, no political party can envisage going it alone even if it wanted. Constitutional changes, require in most cases two-thirds majority in parliament to pass. Section 85 of the Constitution specifies the procedure for any changes to the Constitution. Some sections are entrenched while others are double entrenched, meaning that the absolute concurrence of both the National Assembly and the Senate and in some areas a referendum are a requirement. It is clear therefore that when the government makes declarations that constitutional and institutional reforms are being worked upon and will be presented to the forthcoming SADC Summit in Swaziland in August 2016, it is a clear deception. Government’s actions are a movement to nowhere. Constitutional reform requires inclusivity to be sustainable.

Why Constitutional Review?

The decision by SADC that Lesotho should proceed to undertake reforms were informed by the never-ending crisis which has pre-occupied the regional body for more than two decades. In most of those periods, SADC intervention was akin to a fire brigade, only putting out the fire, but not cleaning the surroundings so that it does not have to rush back. After eight months of providing the Prime Minister with a security detail, and other tasks, it was clear that fundamental changes are needed to minimize the instability. This was an attempt to ensure that a severely divided country can be reconciled. That is why the decision was that the reforms be undertaken with the support of SADC. The point is that the reforms we hear about are not a result of domestic consensus, but are largely foreign driven. Whether foreign driven or not, consensus building is imperative if such reforms are to be sustainable.

It stands to reason that for the reforms to succeed, there is a need to address a question of a divided country with a patchwork of a government with a racer thin majority in parliament. The fact that all opposition political leaders in parliament are in exile, indicates that the reforms are essentially doomed. Constitutional and institutional reforms require to be preceded by consensus building amongst the political class. It requires that those in government and those outside feel secure enough to be able to look beyond now, otherwise the next government would almost certainly change the constitution and other laws which were imposed.

It is clear that constitutional changes are also a social engineering project to minimize conflict and to bring about stability in the political process. For constitutional review to take place, the playing fields must be level. An attempt to pre-empt reforms by filling positions in the public service with one’s surrogates with underwhelming skills is not a useful strategy. Since the reason for review is to stabilize the system inclusivity must be the only way out. This means that the ultimate end of the process may include relooking not only the structures but searching for qualified personnel who would be able to professionally run such structures. It is therefore futile to pack loyalists in positions prior to reforms. When reforms take place, they necessarily have to end up with ensuring that people are recruited into the new reformed structures rather than reforming with existing staff. Indeed this was one of the recommendations of Dr Prasad who wrote the Report after the New Zealand trip by Lesotho politicians and senior government officials before the 2015 elections. He advised that no senior positions should not be filled until the reform process was completed. Beware!

 Reform Process

On the basis of the nature of the recommended reforms, it is clear that at least three stages should be agreed upon by all political stakeholders. Borrowing from the Zambian experience, the first stage must be to set up a Technical Committee of Experts on the Constitution to scrutinise both the Prasad Report and the SOMILES Report. This group should then consolidate and submit their report for discussion at local levels, constituency levels and lastly at the national level. The thing which is critical here is that the constitutional proposals must not be the monopoly of the national political elite, but must be able to garner the support of the broadest section of the people.

The second stage, of the discussions should be the convening of a national convention. This is the stage where the final political consensus of all political parties, academics, traditional leadership, civil society organizations and others will be sought. What is critical here is that a national conference like that should be the main body that will shape the constitutional and institutional reforms. It would be untenable to have major changes in the constitution to be made a small group of bureaucrats and politicians without broader civil society engagement and blessing. A major project like constitution making cannot be done behind closed doors if it is to be broadly acceptable to the majority of the people.

The third stage of this process would be a formal passing of the reforms by parliament without changes. When parliament meets for an exercise like this it will have got a consensus of the populace in a national conference. It will in such cases, be a formality. It is necessary to avoid the pitfalls which took place earlier where after the IPA had decided on constitutional issues, parliament changed some of them. In essence, the national conference should, for this purpose be the place where the national will would be rather than feuding politicians.

The substantive issues about the Prasad and SOMILES proposals will be handled in two weeks’ time.

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