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July 2016

When a State Kills and fails to Protect Citizens: Emergence of a Predator State in Lesotho

Overview

Sunday 10/07/2016 will forever be remembered as one of the days in recent Lesotho political history when the editor of a newspaper survived an assassination for doing his job. The editor of Lesotho Times, perhaps the only credible newspaper in Lesotho, Mr Lloyd Mutungamiri, was waylaid from work and shot several times by unknown assassins. As this post is being written he is undergoing reconstructive surgery and removal of the bullet or bullets still lodged in his head.

The attempted assassination was preceded by intense government harassment on him, his journalists and the Publisher of the paper, by the government. But more importantly, this attempt was preceded by a threat to kill Basil Peta, Publisher of the paper by one Ramat’sella, a ruling coalition government activist. Ramat’sella made his threats in a gutter radio station called T’senolo FM which specialises in hurling insults and threatening anybody who is thought to be opposed to the present coalition government. Unsurprisingly, in Lesotho where impunity is promoted as part of unannounced state policy for those who are connected to the government, no action has been taken against Ramat’sella or that gutter radio station. The content and circumstances of Ramat’lla’s threats to kill both Peta and later United States Ambassador to Lesotho, is not the subject of this post. These incidents are used only as examples of the challenges citizens, media and diplomats face, if they demand accountability. They face death just like Mutungamiri was meant to.

When a state goes out of its way to kill or fails to protect its citizens against killers, it ceases to serve any purpose. The foundation of modern states as philosophers have stated over time, is that people surrender their rights of self-protection to the state so that the state is able to collectively protect them. This is the most fundamental issue upon which allegiance is based. Understandably the state reciprocally expects allegiance and loyalty from the citizens. This is what binds the state with the people. In Lesotho we are witnessing the inversion of this principle. We have a state which feeds on its people. A predator state par excellence has emerged. It demands loyalty without reciprocally providing security and welfare to the people. The point however is that this predatory behaviour is not new. It began a few years ago as we will show.

Insecurity and Impunity in Lesotho

Lesotho has been on a downward spiral for over two years now and the process has now accelerated. Two significant incidents in 2014 are illustrative of this downward spiral.

In January 2014 several army personnel attacked with bombs three families in Maseru which injured and damaged properties. The house of the former Commissioner of Police; the house of the partner of the then Prime Minister; and the neighbouring house were targets. After investigations, cases were opened; suspects were identified; and summons/warrants of arrest were issued. The LDF Command refused to hand over those suspects. They are still free up to now.

In August 2014 army personnel in pursuit of an attempted coup attacked several police stations in Maseru and in the process brutally killed Inspector Ramahloko at police Headquarters. The killers and all those who were involved in that attempted coup are known and the Phumaphi Commission Report clearly indicated that they should answer for themselves in a court of law rather than staying ensconced in the barracks. Warrants of arrest were issued but are unenforceable because the very people at the top of the security establishment are suspects. They obviously are not going to arrest themselves. In the meantime they have continued to commit more crimes. They are still free now because the perpetrators of these crimes are for all intents and purposes either allied with the government or are in control of the state.

This insecurity has escalated since the assassination of former LDF commander Maaparankoe Mahao, on June 25 last year, and the reinstatement of Tlali Kamoli by Prime Minister Mosisili after the latter was returned to power in the 2015 snap elections. Like in all the above cases, Mahao’s killers are known but are protected even after the decisions of SADC in both its January 2016 and in its June 2016 Summits. The point which the above illustrates is that in Lesotho, if one is linked to the government and LDF, crime pays rather than the other way round. Indeed in all the above cases, the perpetrators come from the ranks of the military. But more significantly most of those who have been linked with the above crimes have since been promoted despite warrants of arrest against them.

The above indicates a pattern. Recent developments like the attempted assassination of Lesotho Times editor and the threats to kill both Peta and U.S. Ambassador create a clear link between the actions of the lawless part of our society with those of the present government. It is clear to me that Ramat’sella’s outbursts should be seen as part of the bigger project to eliminate all dissenting voices in Lesotho.

Creating an Environment Fear

The attempted assassination of Mutungamiri did not come suddenly as we are aware. Three developments are worth highlighting. First on 23/06/2016 he and one of his reporters who had written a story that Kamoli was on the verge of being given a golden handshake of R40 million, were interrogated by a team of twelve people from the police, army, and national security for several hours. Both were being asked to reveal their source for the story and also to apologise for not authenticating the story with the government. It was a case which was remarkable in many ways. First failure to authenticate a story with another party can never be a criminal matter requiring police action. It is purely a civil matter. Second, the military has no role in matters of that nature. If it is aggrieved, it can in a normal country, sue the paper rather than to harass journalists. Finally the police took Mutungamiri’s passport. The last I knew police could only hold on to one’s passport after obtaining a court order. When Keiso Mohloboli, the journalist who had written the story, was released, Mutungamiri remained with the police who quizzed him on a weekly satirical column in Lesotho Times called Scrutator. They accused him of being the author of the column which they demanded must be stopped for mocking the LDF Commander.

Secondly, Peta the Publisher of Lesotho Times was summoned and charged with crimen injuria over the contents of the satirical column which is alleged to have defamed Kamoli. The issue here again is that Lesotho Times was being made to feel the pressure for making any comments about Kamoli.

Thirdly, there came Ramat’sella’s diatribe in T’senolo FM. He threatened to have the Publisher of Lesotho Times killed. What is important is that it is not Peta who was the subject of this, even though he was called all types of things including a being a spy. It was Lesotho Times which was being singled out as an anti-government newspaper. That Mutungamiri instead of Peta was almost killed is irrelevant. The focus was on the editorial focus of the paper in reporting the news rather than listening to the attempted refocusing of their reports to other stories and away from Mahao’s murder as the Prime Minister’s Political Advisor sought to do. Peta in an open letter to Ramat’sella reveals this intriguing attempt to manipulate the newspaper. The attempt failed.

The issue therefore is whether circumstances surrounding this case do not lead to the conclusion that the attempted assassination of Mutungamiri is not linked to the above attempts to intimidate the newspaper. Media advocates around the Southern African region have largely come to the conclusion that the attempted assassination was a freedom of the press issue rather than anything else. They have gone further to urge the government to bring the perpetrators of this crime to book. The question however is whether in an environment of impunity, where known killers have escaped going to court, whether the attempt to kill Mutungamiri will be dealt with differently?

 

Conclusion

Impunity is the driving force behind the crimes in Lesotho. The threats to kill Peta and Harrington, the U. S. Ambassador; the attempted assassination of the editor of Lesotho Times; and other crimes being perpetrated in Lesotho indicate that the state no longer serves any purpose except to prey on citizens. We should not make the mistake of focusing on the puppets like Ramt’sella, but must go beyond and look who is the puppeteer. Ramat’sella and his ilk are mere diversions. The problem is the Lesotho predatory state which serves connected criminals rather than the broader society.

As we resist the culture of impunity and lawlessness, we have to salute Mutungamiri and his staff for standing for journalistic ethos rather than becoming state sycophants. Lesothoanalysis.wordpress.com wishes Lloyd Mutungamiri a speedy recovery. We also wish his family and staff strength in these difficult times.

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Stretching the Boundaries of Legality in Lesotho – Reappointment of Lt Gen Kamoli

Hands up, those who can rewind quickly and still vividly remember the happenings of Friday 29th August 2014! It is now common knowledge that on that fateful day, the then Commander of the Lesotho Defence Force, Lieutenant-General Tlali Kamoli was removed from his position as Commander by His Majesty King Letsie III, on the advice of the Prime Minister, Dr Tom Thabane and replaced by Lieutenant-General Maaparankoe Mahao. The fact that the dismissed Commander refused to leave office is not relevant to the matter below because the legal instruments were issued for his dismissal.

It is also a matter of common public knowledge that the Prime Minister Mosisili who succeeded Dr Thabane following the February 2015 general election, re-instated Lieutenant-General Kamoli in the most baffling and bemusing manner ever. Dr Mosisili dismissed Lieutenant-General Mahao retrospectively from the date that he was appointed by his predecessor, and in the same move, re-appointed Lieutenant-General Kamoli retrospectively from the date that he was dismissed in 2014.

I have, for all this while, been thoroughly dismayed that the Lesotho Law Society and the Law Faculty of the National University of Lesotho have both not gone into overdrive to analyse and dissect this legal conundrum. I am not learned by any measure, however, I would like to venture an opinion that in a purest and simplistic sense, the action of Prime Minister Mosisili sought to “expunge” (remember that word) Mahao’s appointment and tenure as Commander and pretend that it did not happen at all. It is as if time stood still. However, because we live in the real world where time does not stand still for anyone, and assuming that both the appointment of Mahao and re-appointment of Kamoli were lawful and legitimate; the practical, legal consequence of Prime Minister Mosisili’s action is that it renders Lesotho as having had two bona fide Commanders of the Lesotho Defence Force during the period from 29th August 2014 to 22nd May 2015 when Mahao was eventually dismissed. Is having two concurrent Commanders of the Lesotho Defence Force consistent with the Lesotho Constitution?

Fast forward to a hypothetical situation in 2016. Dr Thabane returns as Prime Minister through a legitimate process (elections, parliamentary shifts/floor crossing/vote of no confidence etc.). He then re-appoints Mr. Khothatso Tsooana (apologies to Mr. Tsooana, the use of his name here is purely illustrative and not indicative) as Police Commissioner retrospectively from the date when he was dismissed by former Prime Minister Mosisili. Imagine that!! Now, who in the world would cry foul and challenge that? It would also mean that Lesotho would have had two concurrent Police Commissioners during some period, but hey, this is Lesotho. But wait, it gets even better.

If Prime Minister W today, dismisses Minister X from the Cabinet, and replaces him/her with Minister Y, can Prime Minister Z tomorrow, appoint Minister X to his Cabinet, and appoint him/her retrospectively from the date when he/she was dismissed from the Cabinet of Prime Minister W, and in so doing, enforce the status of Minister X as having still been a Minister from the date that he/she was dismissed by Prime Minister W up to the time when his/her tenure as Minister would have ended anyway, perhaps through dissolution of Parliament and a general election?

The central question here is whether a sitting Prime Minister can “stray” into the term of a former Prime Minister and undo appointments of incumbents occupying statutory positions, where such appointments have been made lawfully and legitimately. This precedent now set by Prime Minister Mosisili needs to be interrogated, analysed and ruled upon by the Courts of Law, because if left unchecked, as is currently the case, some smart politician in future will ruffle feathers and precipitate a crisis. Professor Nqosa Mahao touched upon this very issue during the press conference convened by the Mahao Family on the afternoon of 27th June 2016, where he stated that the “unadulterated” version of the Phumaphi Report stated that the dismissal of Lt General Mahao and re-appointment of Lt. General Kamoli, in the way that it was done was illegal as opposed to the other published version which cites this as having been irregular.

Now, the treatise above, tries to examine the legality of the re-appointment of Lt. General Kamoli, through the eyes of a lay legal mind, by posing scenarios and questions that the learned community should pursue with vigour, through answering the central question posed above. What is still to be dealt with is the other side of the legality coin in respect of the re-appointment of Lt. General Kamoli, namely; is the re-appointment of a Commander who was de-commissioned by his Majesty King Letsie III consistent with the Lesotho Defence Force Act, as well as accepted international military conventions and protocols. I suppose that Prime Minister Mosisili was trying to “expunge” (that word again) the de-commissioned officer argument by making the re-appointment retrospective. But in so doing, Prime Minister Mosisili appears to have plunged himself into a legal abyss from which he may possibly be unable to escape; because wish as he may, time did not stand still from 29th August 2014 to 22nd May 2015. All Prime Ministers are equal, no Prime Minister is more equal than others.

Hands up again, those who remember the Court of Appeal case Attorney General v His Majesty the King and Others, whose judgement was handed down on 12th June 2015. You will all recall how the Attorney General lodged this case which he had earlier lost in the High Court, on the basis that the appointment of the President of the Court of Appeal was unlawful. Again, I am not learned, but I would like to venture an opinion that lodging a case against the re-appointment of Lt. General Kamoli on the rudimentary arguments advanced herein would be easy pickings for the Attorney General. The more pertinent question, however, is whether the Attorney General is of the considered view that the re-appointment is legal and proper. Why is the Attorney General, someone who is entrusted with defending the constitution, not concerned? If a Court of Law were to rule that the re-appointment was illegal, what would that mean for the alleged negotiations for an exit package for Lt. General Kamoli? Are we not giving a golden handshake to someone whose occupancy of the position of Commander may be illegal?

Lesotho needs answers to these burning questions, Lesotho needs to reform her Constitution to free herself from the shackles of the past 2 years, but it is important to defend the Constitution from those who subvert it.

Mosuoe Mapetla

Guest Author of lesothoanalysis.wordpress.com

 

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