From 1993 when military rule was formally brought to an end, up to the present, one political party in its many variants ruled Lesotho. This monotony was briefly broken by the coalition government led by Dr. Thabane in 2012 up to March 2015 after the elections. That brief break with the past, broad about shock in the establishment which had gone unchallenged for all those years. The reaction was fierce, culminating in the attempted coup of August 2014. It is as a result of those developments that an attempted coup was launched bringing an unprecedented clamp down of the opposition and those in the military who were perceived as supporting the government which had been in office for the previous two and half years took place.
Leaders of all the opposition parties represented in parliament fled into exile in South Africa; over sixty soldiers were detained, tortured and ultimately charged of mutiny; another group of soldiers fled to South Africa for fear of detention and torture. The pinnacle of this clampdown was the cold blooded ambush and murder of the former Lesotho Defence Force Commander Lt. General Mahao by a team made up of no less than twelve soldiers in June 2015. The outcry which followed this murder led to the establishment by SADC of an international investigative team led by Justice Phumaphi from Botswana whose recommendations were endorsed by the SADC Summit in Gaborone Botswana in January 2015.
Amongst the key recommendations emanating from the Phumaphi Commission were that:
- a) General Kamoli who had been reappointed to succeed Lt. General Mahao be relieved of his command;
- b) All soldiers suspected of Murder High Treason and other serious crimes shielded by the LDF Command be suspended while investigations continue;
- c) All soldiers who had been detained and charged for mutiny be given an amnesty since there is no substance to charges of mutiny;
- d) Opposition leaders in exile be facilitated to return to the country in conditions of peace and security in order to ensure their participation in the constitutional, public sector and security reforms.
After a lot of dilatory strategies the government finally agreed to implement the decisions. It was however clear that it would continue to put obstacles in the implementation of those decisions due to the fact that those hit at the core of the facade of a civilian administration while in fact, the dominant force in the government is military. The decisions were focused on bringing about civilian control over the military and ensuring that the rule of law is brought back. At the same time the prosecutions of those involved in some cases of Murder and High Treason would affect all the accomplices who include some of the people in the government. It is therefore not surprising that the proposed Amnesty Bill would also cover the government and its agents, civilian and military. But such Bill is an undignified action prompted by fear of the Prime Minister and his allies that there could be a negative reaction by Kamoli in the LDF Command and also some of the politicians sitting in cabinet who have plotted and/or abetted the commission of those serious crimes. It is however a futile exercise to try to provide immunity to people who have committed serious crimes. That is bound to fail.
Amnesty Bill 2016 and its implications
The draft Bill, which is expected to be tabled in parliament when it resumes, is geared to “…make a provision for the grating of amnesty to persons who are members of the disciplined force and services and any other person liable to criminal prosecution and/or disciplinary proceedings and /or civil action, and to the government of Lesotho, its officers, agents and functionaries liable to civil action and connected matters”. Section 3(1) lists groups of people who are indemnified for crimes committed from January 2007 to December 2015 done or purported to have been done in the national interest. It goes further to limit the well known principle of vicarious liability that actions done or purported to have been done by employees are borne by the employer only if those people were doing so in the execution of their duties. This draft law does away of that principle by spelling out that even those who would have been excluded from cover by virtue of their lone wolf actions are included. It provides that actions “… done on a frolic of duty, outside the scope or course of employment in order to, including in a case of a person acting privately, cause national instability and endanger national security for political ends or motives.”
If this Draft Bill were to become law, it would have radically transformed our hitherto weak criminal justice system and our civil law into a law made by the powerful for powerful. Accountability would have been trampled and impunity would have been elevated to state policy. Indeed all the challenges which were identified by the Phumaphi Commission would have been struck off at the stroke of a pen. Let me go over the key issues which will illustrate the point above.
The Draft Bill correctly identifies the period it proposes to provide cover for in Schedule 1. 2007 launched a period of competitive politics in Lesotho. It is from this period that heinous crimes of torture and assault on both civilians and soldiers were committed by the LDF during and after the State of Emergency. Some of the people who committed those crimes are at the helm of the LDF and necessarily would never want to face the courts if the rule of law were to be restored. The amnesty for the 2007 crimes is therefore understandable in view of the dominance of the army in Lesotho politics at the present time.
As already pointed out earlier, the period 2014 to 2015, launched military led dominance in Lesotho politics. While in 2014 until the elections, the military was not under civilian control but was virtually an independent force, checking the civilian administration, the period after the 2015 elections, brought about a situation where the military was totally in control of the government and the civilian administration was only providing a cover for a full fledged military rule. It is for the same reason that Lt. General Mahao was removed from his Command, and later murdered by the same people who had attempted to kill him during the attempted coup of August 2014. The re-appointment of Lt. General Kamoli and the detention and torture of soldiers who were believed to have rejoiced when he was removed as Commander brought about the spectre of military led administration trying to clear off its perceived enemies.
The Draft Bill seeks to protect criminals and to provide a sop of compensation from state resources to those who have been victimised and their families. In the context of poverty dominating people in Lesotho, the regime puts the carrot of compensation in the hands of the Minister of Finance and not the courts as a carrot which it hopes people will fall for. This has already been done by providing the family of one murdered woman R10, 000 funeral expenses by the LDF on condition they keep quiet about their murdered daughter. It attempts to equate criminals and their victims. Indeed those who have played a role in the commission of crimes from 2007 to the end of 2015 have largely been rewarded with promotions and other perks in the past twelve months.
Let us recall that the murder of Mahao by LDF operatives is what has triggered the present attempt to indemnify those who killed him. The Phumaphi Commission spelled out that clearly and unequivocally. This however is not the only thing. It also identified people who have pending charges against them but have been shielded by the LDF Command for High Treason, Murder and other serious crimes. The most significant revelation by the Phumaphi Commission was that it received and accepted evidence that LDF had become a law unto itself.
- Evidence before the Commission is that 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.
For all intents and purposes the Amnesty Bill is meant to shield the above. The Commission went further to identify cases where some of the above and others are also suspects in other murder cases. Annexure 9 of the Phumaphi Report lists cases of murder, attempted murder, High Treason and others committed by the LDF. Those were committed throughout the country but specifically reported in police stations in Morija, Mohale, Mafeteng, Mokhotlong, and several police stations in Maseru. Amnesty would therefore wipe off all these cases and others which have been committed by serving members of the LDF.
Even more concerning is the emerging case of Captain Chaka, one of the detained soldiers who has apparently fallen seriously ill at the Maximum Prison. Needing surgery, Chaka’s lawyer wrote to LDF Commander to seek his release on open arrest so that he could be able to go for surgery and recuperate from home. Kamoli’s response was prompt, writing to Captain Chaka to show cause why he should not be dismissed for disrespecting the Commander in the letter through his lawyer. The letter goes further to make a grant claim that “..it is not in the best interests of the Lesotho Defence Force for you to remain in the force, you are a security risk to the state.” This is clearly an inhumane and irrational action against Chaka. I argue that this amounts to torture. It is inconceivable that actions like these should be covered under any amnesty law.
This is clearly a Bill which will ensure that Lesotho continues to be plagued by instability and lack of accountability which both national and international bodies have demanded. Is this approach viable?
Futility of the Amnesty Bill
Chapter II of The Constitution of Lesotho provides for the protection of Fundamental Human Rights and Freedoms. The Right to Life is the first of those rights. The issue of affording murderers amnesty is clearly in conflict with this provision. It is unheard of that there can be a group of people who can go on a rampage and murder citizens for almost ten years and then try to provide them with immunity from prosecutions. I dare say that no legitimate court of law would accept that derogation from the constitution. It is as clear as you would get in “Law 101 (L101)” that a law that attempts to get rid of the key elements of both our criminal and civil law for those who murder others is unconstitutional and unsustainable. This regime’s legal advisors probably need either a refresher course on constitutionalism or maybe have to take a preliminary L101 course in a country of their choice.
Experience in other countries on similar cases abound. Cases in Argentina and Chile where the juntas of the past tried to indemnify themselves from legal recourse for their crimes similar to the ones committed in Lesotho have found out to their peril that such actions cannot be sustained in the courts of law. Almost all the self-protection laws were repealed and the courts of law rejected the attempts by rulers of the past to challenge the laws under which they were prosecuted. In those countries, there were no democratic constitutions like we have in Lesotho now when the laws were made providing for amnesty. Nevertheless the rulers of the past still failed to stay out prison even in their 80s and 90s. In Lesotho we now have a constitution which guarantees those rights.
In addition to the above, it is obvious that taking this action will not satisfy international institutions which have demanded that the rule of law be brought back as a condition of continued support. Rather than satisfying those demands, this Bill is likely to be magnet for negative comments. It would signal that Lesotho has gone so much astray that it would be impossible to satisfy Agoa eligibility criteria. International pressure would mount on Lesotho if this Bill was passed by parliament.
Finally, it is clear that the government which is tottering to collapse like the present one is unlikely to have the votes to even move this Bill successfully in parliament. Prime Minister Mosisili in his speech to his divided party a week ago attempted to use threats and what could only be labelled blackmail for Members of Parliament who are inclined to support a motion of no confidence in Parliament. He is aware that such a motion is on the cards, and all he could say was that Members of Parliament must remember that they had debts since he could move to have parliament dissolved. The central issue is that a government which is barely holding to power cannot imperil the country with a law like this. Moving this law is panicky move by the government to protect some in its midst and the military after it is voted out of office. It is a desperate move motivated by fear by those who have been engaged in criminality. This is a typical case of the last kick of a dying horse!
The credibility of all Members of Parliament will thus be determined by whether they individually and through their political parties support impunity or otherwise. I for one firmly believe that individuals and parties which will end up supporting this most undemocratic law should be targeted and made to pay for this disloyal action in the next election. This would be a betrayal of the trust!