lesothoanalysis

Overview

From September/October 2016 we have pronounced the imminent fall of Lesotho Prime Minister Mosisili’s government. That has not happened for one reason or another. After more than fifteen years as Prime Minister, Mosisili has learned how to avoid traps. Cunning as he may be. he now knows that even the most politically astute politician can postpone but not avoid his Waterloo moment. By the judgment of the Lesotho High Court, Mosisili won control of the Democratic Congress (DC) against the executive committee of his party which had sought to oust him. He however realised that his victory was not worth anything since his nemesis in the party; Monyane Moleleki walked out and formed a new party supported by no less than 50% of Members of Parliament. That left him leading a minority coalition government. It must be remembered that Mosisili’s coalition was made up of seven coalition partners most of whom had only one seat each in parliament. When twenty three members joined Moleleki’s Alliance of Democrats (AD), Mosisili remained with at most 42 coalition members of parliament in a 120 seat body.

Moleleki had earlier on formalised his agreement with All Basotho Convention (ABC, with the support of the two other exiled political leaders of the Basotho National Party (BNP), and the Reformed Congress of Lesotho (RCL), to form a new coalition government. The numbers of that prospective coalition are over seventy. To make matters worse for Mosisili, his Deputy Prime Minister’s party Lesotho Congress for Democracy (LCD), which was the second biggest in terms of numbers in the coalition government, has also dramatically split. The Secretary General of the Party, Selibe Mochoboroane has now formed his party called Movement for Economic Change (MEC). That makes Mosisili’s prospects for survival even bleaker. He probably only has members of parliament who are equal or less than his 37 member cabinet. This is why he has failed to replace all those cabinet members who resigned with Moleleki.

How then has Mosisili survived with these numbers in a parliamentary democracy? It was largely due to the connivance of the ruling coalition and the Speaker. From 11/10/2016 when parliament was re-opened after the winter break, until two and half weeks later when it went for another recess indefinitely without a vote by Members of Parliament, the agenda was only prayer. No debates were allowed to take place for that period. Even the “points of Order” interruptions common in parliaments were ignored by the Speaker. The key issue was how to prolong the government in office while making all the efforts to prevent an effective successor government. In the meantime, Mosisili was frantically working on a programme of self-perpetuation even when the inevitable happened. He was under no illusion that his days were numbered but he wanted to prolong his influence beyond his days in office by frantically appointing his protégés and promoting others to strategic positions. These included attempts to dilute SADC decisions on Constitutional, administrative and security reforms; it also included hoodwinking other people about the government’s true intentions on the Amnesty Bill.

Investing in his future

In 2012 when Mosisili handed power to his successor, he had been Prime Minister continuously from 1998. He had thus built a solid base in both the public service and the security services. Nevertheless he felt the need to appoint both the Government Secretary, who heads the public service, and the Commander of the LDF a few weeks before the elections. Kamoli later came to serve him well in destabilising the new coalition government until it collapsed. After two and half years away from power, Mosisili seems to have been clear that there was a need to rebuild his power base.  He got rid of all Principal Secretaries but two and Ambassadors but two. He also swept clean the echelons of the police to be replaced by his handpicked ones. His final sweep also went to remove Professor Mosito, an eminent jurist as President of the Court of Appeal, on tramped up charges of delayed submission of income tax returns, where the tax authority was not even a complainant.

Mosisili’s reach in twilight days has been very extensive. It was and has a focus on his future rather than the national interest. Perhaps what gave him nightmares was the ever increasing pressure from the European Union and the United States on implementation of decisions emanating from the Phumaphi Report. Key to him was the insistence that he should remove Kamoli, his key ally, from the command of the Lesotho Defence Force (LDF). Having conceded that he had no alternative but to do so, he dilly dallied for more than six months. His argument was always that negotiations are on-going. The dateline for AGOA annual assessment for eligibility was getting closer. The U. S. did not only sent an Assistant Secretary of State to Maseru, but also wrote an uncompromising letter to Mosisili that Lesotho faces exclusion from AGOA if there is no progress in implementing the SADC decisions on good governance and rule of law.

It is at this stage that Mosisili began to process the exit of Lt. General Kamoli as Commander of the LDF. This was done through an obscure clause in the Legal Notice ostensibly to appoint Major General Mot’somot’so as Commander. The clause removing Kamoli reads as follows:

2. The Lesotho Defence Force (Appointment of Commander) Notice 2015 is repealed.

While Section 1 promotes and confers the Command to Mot’somot’so, Section 2 repeals the instruments which appointed Kamoli. This is inelegant but effectively removes Kamoli as Commander since he was only appointed in 2015 by Mosisili after he had been dismissed by the previous government. But what is clear is that Kamoli left on his own terms. These are the indicators.

First is the appointment of Mot’somot’so who was due for retirement. He has always demonstrated extreme loyalty to Kamoli. His stance was made clear in 2014 when he was appointed to Act as Commander while Kamoli was onstensibly on sabbatical. He refused to accept even a letter of appointment. Rumour has it that he did not even use the Commander’s office during that period.

Second, Kamoli continues to be heavily guarded by members of the LDF several weeks after he has been removed from his Command. More importantly, a week ago, when his sister was being buried, the whole funeral activities were handled by the LDF. Army helicopters and trucks were all over in Bobete, where he comes from. Perhaps a secret agreement exist somewhere which will explain how Kamoli left LDF and remained in charge.

The second layer of Mosisili’s strategy to perpetuate himself beyond his term of office is related to the amazingly rapid career progression of officers in the army and the police. Details are only emerging about police promotions and they include the rapid rise of one Mapoola who is now Assistant Commissioner of Police. This is the second promotion he has had after Mosisili got back in office after the 2015 elections. His amazing story was told by him to the Phumaphi Commission, where he was dismissed rather amusingly by the Commission when he related a civilian version of the army mutiny but refused or did not know anything that would be of assistance to the Commission. The military progression like the meteoric rise of Mapoola is more interesting as part of the bigger picture of Mosisili’s survival strategy. In a tabular form hereunder I show cases similar to those but also will indicate why this is important later.

What is significant about these movements is that more than 90% of the upward movements here is made up of people who have been specifically pinpointed in both the Phumaphi report and also the judgement of the Court of Appeal in which Hashatsi challenged the legality of the Phumaphi Commission. Needless to say that he lost that case. Most of these people are expected to be suspended while police investigations continue about a myriad of cases from High Treason, Murder, and Bombings etc. Instead of suspension they have been promoted some against the Promotions Policy which guides these cases.

From a public policy perspective, there are also a lot of issues with these promotions. They largely did not exist in the establishment and have been done in the middle of the financial year. What it means is that posts were created for the above and the next government will be settled with unmanageable personnel costs. But even more important is the fact that the promotions have created a monster whereby there are too many brigadiers, too many colonels. It’s a case of “too many chiefs”.

For Mosisili at least two objectives have been achieved by the promotions. First, if international pressure increases and he releases the detained soldiers and those in exile return, he will have miraculously ensured that seniors are now juniors of his handpicked soldiers. It will now be easy to remove those he did not approve of through normal military procedures. Thus throughout the ranks he will have his ears and eyes to ensure that he and Kamoli continue to be in charge of the LDF.

Secondly, like in the first change of government in 2012 where Mosisili placed Kamoli to ensure that the government was unstable, he has now devised a grander scheme. No government that he does not like will be able to run the country. He will thus be remotely in charge and with no responsibility for what happens.

As if these moves are not enough, Mosisili has intensified his stranglehold on power beyond his days in office by seconding recently promoted Colonel Lekhooa to head the National Security Service (NSS), a civilian intelligence agency, from LDF. We now have a serving military officer heading NSS. How can a military man, already implicated in the crimes listed in Hashatsi’s case in the Lesotho Court of Appeal, head and provide independent intelligence advice to the government? Mosisili and Kamoli now have a stranglehold on the government for the foreseeable future. Lekhooa has only been placed at NSS only to gather intelligence to frustrate justice. He will only be there as part of the exit strategy for both Kamoli and Mosisili. He will not serve the government of the day but will play the role of a private intelligence for those who placed him there. Let us be aware of the strategies of self-perpetuation!

The seriousness of these actions far outweighs his eminent fall. He will control all the levers of power while others attempt to run an ungovernable state. Are the leaders of the forthcoming coalition aware and ready to respond to these machinations? For the sake of this country I hope they are.

Happy New Year! We parted in October 2016 due to a nasty car accident.

Overview

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:

1. a) General Kamoli who had been reappointed to succeed Lt. General Mahao be relieved of his command;
2. b) All soldiers suspected of Murder High Treason and other serious crimes shielded by the LDF Command be suspended while investigations continue;
3. c) All soldiers who had been detained and charged for mutiny be given an amnesty since there is no substance to charges of mutiny;
4. 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.

138. 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!

Overview

“The strongest is never strong enough to be always master, unless he transforms strength into right, and obedience into duty” Jean-Jacques Rousseau (1770).

The weakness of a lot of regimes in Africa is the rulers do not know or do not want to be told simple truths and knowledge from the past. But more important is the fact that to them experience and knowledge is an enemy. If they had only glanced at Rousseau’s writings, they would have noticed that power without authority is a sure way into the slippery road. For Lesotho Prime Minister Mosisili, he should have noticed that his second ascend to power as Prime Minister was his most perilous since he not only did not command a majority in parliament, but also faced a critical security crisis which would have required wisdom rather than might. It would have required him to bring about national consensus rather than to rely on a system of rule dependent on brute force.

When Mosisili regained power with the assistance of six political parties, most of which strictly speaking did not qualify to get a seat in parliament but were compensated since Lesotho does not have a threshold, he professed to have dispensed with his arrogance. That was not how he handled himself. He pushed away all who do not agree with him; removed all public servants, military and police who got office while he was away for two and half years. But more importantly he alienated his party in favour of his new ally, Leader of the Lesotho Congress for Democracy (LCD) Mothetjoa Messing, who sought revenge and vengeance against his former partners in the previous coalition government. This as we will show was the beginning of his troubles which we now see. Thus rather than forming and running a government for all as would have been expected, Mosisili/Metsing partnership sought to survive though intimidation and violence. In his remarks Tallerand is reported to have observed about the Bourbons in France after coming back to power to have “…learned nothing and forgotten nothing”. So did Mosisili after his spell in the opposition benches. Fifteen years in power did not teach him anything. He also did not forget or forgive those who managed to keep him out of power for two and halve years. More critically he suspected his deputy to harbour ambition to succeed him.

The past few weeks have witnessed inexorable move towards the breakup of the Democratic Congress (DC), the mainstay of the present coalition government. The question therefore is what is happening, why and what are the implications of the breakup of the DC?

Power struggle within the DC

Following prolonged factional squabbles in the LCD in February 2012 Prime Minister Mosisili was invited and joined the DC as a leader. At the time it was assumed that he would have a short stint in the party and would have been expected to leave office after the 2012 elections for his deputy who was instrumental in the formation of the breakaway party. Mosisili apparently had other ideas. He  not only stayed in office but soon when the snap elections were held he continued to lead and has  unsuccessfully been trying to elbow his deputy in favour of Metsing of the LCD. It is in these circumstances that the youth supporters of DC began to mobilise within the party. In subsequent elections of both the party executive and the youth league, the supporters of Moleleki the deputy leader, almost swept the board. Mosisili’s supporters had sway in the women’s league which is chaired by his most ardent supporter, Dr. Sekatle. But it is this which probably worsened the situation. By being a strident supporter of Mosisili and being touted as his preferred successor, Moleleki’s supporters began to challenge what they saw as an attempt to rig the succession process within the party. Sekatle also can be accused of reckless talk as we got to know through a taped speech in her Qacha’s Nek   constituency where she seemed to suggest that if Mosisili left office, such office would be occupied by Metsing. She began to conflate party succession with government succession. In the audio clip which was widely circulated, she was heard clearly to favour Metsing from the LCD as Mosisili’s successor.

Sunday 18/09/2016 brought about the dramatic end to the chess game that both Mosisili and Moleleki had been playing for some time. It was preceded by three weeks of turbulence. First was the unprecedented expose of corruption on a breathtaking scale where the Directors of Lebelonyana, a locally incorporated company, together with a team of DCYL presented its contents in several radio stations. They claimed that:

Ø  The partner of the Minister of Finance summoned them to the Minister’s residence and in her presence demanded a bribe of over four million Maloti/Rand in order to be awarded a contract for supply and management of a government fleet;

Ø  After declining to provide the money, the Minister a few days later cancelled the procumbent process whereby the company had been selected to provide the fleet by the tender panel. The Minister then gave the contract to a South African Company by the name of BIDVEST which had not even tendered for the contract. The Minister of Finance is regarded as a staunch supporter of Mosisili;

Ø  Subsequent to that, police interrogated and intimidated the group and they ended up fleeing to South Africa for a few days fearing for their safety. When they finally returned to the country, they were accompanied and met by some Ministers and Members of Parliament from their party who clearly supported their stand. These were aligned to Moleleki;

Ø  Under these circumstances, Mosisili attempted to rally support through holding of political rallies. The first was held at Hololo in Butha-Buthe. The rally was disorderly with those who support Mosisili booing Moleleki and vice versa. Mosisili was stunned and ultimately cancelled all other planned rallies since it was clear that the divisions within his party had intensified. The police had had to be placed in from of the Moleleki supporting crowd in the Hololo rally.

It is under these circumstances that the Sunday march and rally which followed took place. This was first mooted by one Ramat’sella who has been disowned by his political party, Lesotho People’s Congress (LPC), with the aim of demonstrating against U.S. Ambassador who had made statements about impunity in the country. Ramat’sella’s demonstration now took a new turn. After LPC had disowned him and dissociated itself from his actions and statements, he now joined forces with one Sekata from LCD. They now publicly portrayed their proposed march now as a support for Mosisili and Kamoli. It was now not organised by any of the political parties but by individuals. However it was clear that the march was spearheaded by the Mosisili faction of the DC and the LCD. Indeed Sekata, who’s the spokesperson of the LCD, in one radio interview made it clear that they wanted to gauge their support in view of the rebellion within DC. This could not have been otherwise because Ramat’sella has no support from any political party and Sekata in the LCD is fully aware that the LCD is no longer a political force in Lesotho. The DC faction supporting Mosisili also has its own problems because the party structures are controlled by the Moleleki faction. Indeed Mokose, DC Secretary General, specifically distanced DC from the rally.

Significantly several Ministers in Mosisili’s party including the deputy leader did not participate in the rally. Two other leaders of the coalition government also did not participate. Mosisili threatened those of his team who seem to have deserted him. Significantly Moleleki held his own rally in his constituency in Machache and threw down the gauntlet. He condemned the Bidvest/ Government fleet contract as a corrupt deal, and went on to indicate that corruption has also gone even to the recruitment of police in Ministry where which he is in charge, where people got hired irregularly. He denounced Mosisili’s rally in Maseru organised outside party structures.  But more ominously the DCYL which supports Moleleki twitted yesterday that “There’s no such thing as ‘permanent” enemy in politics”. In Sesotho it went on to say those with ears must hear. This has marked a turning point in Lesotho politics. Mosisili is now scrambling to stay in power.

Whereto for Mosisili?

In spite of the bravado that Mosisili exhibited in his Sunday rally, he is in more political trouble than he has ever had in his long political career. First he has lost control of his political party which now will probably take action against him. Unlike in 2012, when he walked away from LCD, he was assured of keeping a majority of his members of parliament, he now can only walk away with a couple of members of parliament. Those who support him but went to parliament on the proportional representation route will have to stay in the DC or resign to be automatically replaced.  Second he has fewer chances of luring the opposition to join him in a coalition government than his deputy. It’s inconceivable that he could mobilise support to remain in power.

On the other hand Mosisili could try his luck by forming a new political party. Social media has been overloaded with that possibility. But that is only relevant if he operates in the opposition benches. Another option for him is that he could rejoin the LCD. He clearly is destined in the opposition benches. Joining LCD however does not improve his prospects. Even with an injection of his supporters into an almost moribund LCD, it is difficult to imagine a massive improvement in support of that party in the next elections.

When parliament resumes in October 2016, Mosisili is likely to lose a vote of no confidence. His option could only be to have parliament dissolved.  This however is not entirely dependent on him. The King does not automatically have to accept the dissolution if the possibility of forming another government exist. Such a possibility clearly exists. The combined numbers of the opposition and the Moleleki faction of DC make such an eventuality possible.

His deputy on the other has better chances of finding partners in the present opposition and two or three from the existing coalition. What it means is that Moleleki would become the Deputy Prime Minister while Mosisili and Metsing become the official opposition.  Though Moleleki is part of the present coalition, he has not been implicated in some of the outrages associated with both the army and also the vehicle fleet scandal. The tone of his speech in Machache last Sunday indicates that he is resigned to joining a new coalition which excludes Mosisili.

Lest we assume that things can go smoothly, let us also consider that Mosisili/Metsing coalition still has the devil’s option. This would entail mobilisation of the military and police to hang on to power unconstitutionally. With no political options and with the military now without a political base, the two can easily attempt to fight to the death. It is only in this way that the criminal faction in the army and the Mosisili/Metsing political faction can stay in power. Let all be aware that the devil‘s option is not out of question. It is not sustainable but it’s on the table.

A strong state that acts negatively and coercively, imposing censorship, restricting the expression of grievances and opinions and viewing citizens as objects to be controlled rather than as partners, is a vulnerable state. (Gary T. Marx)

Recent developments in Lesotho about actions of police have brought focus on the state of policing in democratic societies. We have been witnesses to a police force which has no capacity to investigate political crimes ending up virtually outsourcing its investigations; we have seen a police force turning on itself in order to satisfy political masters; and we have now seen the development of a hunter police force which goes house to house beating up students whose only crime is that they wanted to demonstrate about failure by the government to release their allowances.

It must be understood however that police tend to reflect the dominant ethos inculcated from the top. If the government and the top leadership of the police view society as an enemy rather than a partner such police will drift towards that dominant ethos from above. When society decays and the rule of law deteriorate, it is foolish to expect that democratic policing can survive. Amongst the ethos that define democratic policing in society is a police force that (a) is subject to the rule of law embodying values respectful of human dignity, rather than the wishes of a powerful leader or party; (b) a police force that intervenes in the life of citizens only under limited circumstances; and (c) is a police force that is accountable.

It is thus not the job of the police to kidnap some of its own and make them disappear in order to satisfy the political goals of the political bosses; it is not for the police to determine whether people can use a bus or walk to a place of their choosing. The worst they can do is to protect places which they may fear are being damaged or could be damaged. Democratic policing involves negotiations and accommodation with the public rather than using unnecessary force. None of the above ethos are present in the Lesotho Mounted Police Service (LMPS) as it’s not styled. We have seen the police becoming more militarised and also more unprofessional and unaccountable. LMPS has adapted to the political and security chaos that Lesotho has degenerated into in the past few years. An analysis of some of the unsavory developments within the police will illustrate the point. They involve undisguised unprofessionalism and subordination to the current political climate which does not embrace accountability for all those who are aligned to the present government.

For starters it was obvious that the Lesotho police are either subordinated to the political masters or they lack capacity to investigate crimes which have a political flavour. After the cold blooded murder of Lt. General Mahao, the police failed to do basic preliminary investigations like securing the crime scene and trying to secure physical evidence. If they had, but failed like previous police management, that would have been understandable. To their credit former Police Commissioners from Mlakaza to T’sooana attempted to have LDF suspects investigated for murder, high treason and other serious crimes. They failed to have suspects before the courts, but they documented their attempts. What remains is that the international community and future generations will still be tasked with ensuring that those suspects face trial even after thirty years as the Argentina and Chile cases have illustrated.

The best police work in relation to that murder was ironically made by the South African police. Giving evidence before the Phumaphi Commission, Ballistics expert Major Chris Mangena, who attended a forensic examination on the body of Mahao in Bloemfontein provided an unchallenged scene of incident reconstruction as well as a bullet trajectory determination. The testimony was detailed and credible. It once and for all discredited the concocted evidence of one Sechele of the LDF who claimed that there was an attempt to point a weapon at the members of the LDF who had surrounded Mahao when he was killed.  After Major Mangena’s professional presentation of the evidence, there came a bambling Mapola a member of the LMPS who later became head of the C.I.D. He had no clue about the investigations, but mumbled about some civilians who are being investigated for crimes linked to those of the detained soldiers. Since his evidence was not organised and helpful, Phumaphi summarily dismissed him from any further bambling in front of the Commission.  It is no wonder that the Commission accepted the evidence of Major Mangena and recommended that the LMPS investigations should be resourced – a code for being provided with skilled and professional personnel in their investigations of the murder of Mahao.

Another incident which needs elaboration and analysis is the disappearance of Police Constable Khetheng in the hands of Hlotse Police in March 2016. Constable Khetheng who was based in Mokhotlong Police Station, was arrested by four police officers based in Hlotse in broad day light at Sebothoane in Leribe where he was attending a traditional feast. The police involved were ‘Mabohlokoa Makotoko, Molapo, Ntoane and Mphutlane whose ranks I don’t have. The police through the Minister of Police, answering a question in Parliament later denied having arrested Khetheng but claimed that he was seen around the police station and was nowhere to be seen after lunch when they wanted to talk to him. However evidence by Police Constable Makotoko in a sworn statement reveals that either the Minister deliberately lied to Parliament or he was fed lies by the police.

Constable Makotoko obtained an interim court order forbidding the police to transfer her from Hlotse to some remote police station when she refused to sign a false affidavit about the disappearance of Constable Khetheng. In her founding affidavit, she narrates that she and her other colleagues above, went via Sebothoane after being informed that Khetheng was likely to be found there. They found him and put him at the back of a police van with two other suspects. On their way to Hlotse, Inspector Mofolo, their supervisor called the driver of the vehicle instructing him not to enter the police premises with Constable Khetheng. Since they were hungry they went straight to the Police Station and were stopped from entering the premises by Inspector Mofolo who took over the keys of the vehicle. After locking up the other two suspects in the cells, they found that neither Inspector Mofolo nor the vehicle were around. That was the last time Khetheng was seen.

Perhaps the key to understanding the issues around this disappearance and the fear by ordinary policemen/policewomen is best characterised by Constable Makotoko’s affidavit challenging her transfer to a remote police station. She swears:

…I fear for my life over everything. I am best protected at Hlotse police station over any other area in the country. I wish not to disclose my security arrangements. In Leribe I live within a community that knows the proper story behind the disappearance of policeman Khetheng. I do not wish to disappear myself and at the same time I cannot lie to conceal the disappearance of a fellow police officer.

In an application for habeas corpus by Khetheng’s family, Constable Makotoko in oral evidence stuck to this story. It is obviously up to the courts to decide who is responsible for Khetheng’s disappearance, but this shows that we have a police force which has turned on itself. It probably had long turned against police ethos in a democracy. It is a privatised police force which serves the political bosses rather than the public.

Finally, I turn to the militarised hunter police force which has emerged in Lesotho. All this week beginning 05/09/2016 there has been turmoil within and outside the National University of Lesotho. As we learned, a large number of students have not received their living allowances making it difficult for those who live outside campus to even pay their rent. Students decided to go to the National Manpower Development Secretariat (NMDS) to express their displeasure. They hired buses to go to Maseru about 35 kilometres away. About six kilometres from Roma their buses were stopped by heavily armed police who forcibly stopped their travel to Maseru. The following day students began to march to Maseru and again they were confronted by heavily armed police who liberally used teargas and bullets to disperse them. Several students were injured and were treated in hospital. Wednesday brought about a new aggressive tactic by the police. They went to the surrounding areas of the University, going room to room where students were. Students were liberally beaten and some had to seek hospital treatment.

No attempt was made to arrest any student who could be suggested to have been breaking the law. The hunter police were unleashed to beat up students. Like hunters, the smell of blood from those who were brutalised enlisted more beating and hunt for others. Thus the ethos we associate with police like rule of law have disappeared.

I reiterate that even in cases where the political situation is bad some means are simply too detestable to associate with policing. Kidnapping and taking the law unto themselves are demeaning to any police force even under conditions of a dictatorship. In spite of pressures to the contrary police are not expected to act in an explicitly political fashion.  When opponents of the regime in power operate within the law, it is police obligation to protect those. Democratic policing is professional and politically neutral. These are the values that the Lesotho police no longer have.

On the 3^rd July 2015 an Extraordinary Summit of the SADC Double Troika was convened in Pretoria, South Africa to consider the deteriorating political and security situation in Lesotho. In the words of the Communiqué issued that day the:

Summit received the report of the SADC Facilitator to the Kingdom of Lesotho, and expressed concern regarding the deterioration of the political and security situation in the Kingdom of Lesotho, which forced the main opposition leaders to flee the county fearing for their security, and exacerbated by tragic death of Brigadier Maaparankoe Mahao, the former Lesotho Defense Force (LDF) Commander on the 25th June 2015.

As a result of the above, the Double Troika amongst other decisions decided to establish an “Oversight Committee to act as an early warning mechanism in the event of signs of instability, and intervene as appropriate in consultation with the SADC facilitator”; and to “.. establish an independent Commission of Inquiry into the circumstances surrounding the death of Brigadier  Mahao,  and its deployment with immediate effect.” The observations and the decisions gave the impression that there would be a rapid move to resolve the issues addressed by the Double Troika.  It also looked like SADC had finally understood the breadth and depth of the Lesotho crisis.  As time went on however the indignation arising from the day light murder by Lesotho Defence Force (LDF) members of their former Commander, and the enthusiasm to resolve the issues seem to have waned.  In retrospect, it is apparent that the Lesotho government’s strategy was to try to trek the issues long enough to exhaust the SADC leadership until some of them give up.

The ultimate aim of the Lesotho government was to promote impunity. The government’s complicity in the murder of Mahao became clear for all to see during the proceedings of the Phumaphi Commission which SADC had established. All government representatives from the Prime Minister down to the lowest of the officials pretended that they did not know the killers. None could even explain how the elaborate scheme to hide evidence including washing of the deceased’s body and clothes could take place in a properly functioning democratic state. They also were unable to explain why all the physical evidence was not handed to the investigators.

It’s over a year since the decisions were made and eight months since the Commission Report was adopted in Gaborone in January 2016.  Meeting after meeting has not advanced the course of justice. None of the key decisions made by SADC have been implemented.  On the contrary, more and more of the suspects of the assassination of Mahao and other people; the torture of detained soldiers; and the scheme to cover up commission of those crimes; have been rewarded with promotions and other things. As pointed out in an earlier issue:

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 unmistakable signs of reward. Prime Minister Mosisili has now on several occasions been at pains to thank the military for him being back in office.

It is for the same reasons that the Mahao family recently expressed dismay after meeting the SADC Facilitator, Cyril Ramaphosa in his latest mission to Lesotho, who informed them that no progress has been made to investigate the murder of Lt. General Mahao. On the contrary Ramaphosa informed the family and other stakeholders that a joint group of recruits into both the police and the army were earmarked to begin the investigation. Regardless of the strange question of army recruits being tasked to investigate their superiors who are well-known, this envisaged procedure contradicts Prime Minister Mosisili’s statement in Parliament in March 2016 that in Lesotho well established procedures for investigating crimes like those of the murder of Mahao involve the police who then submit their report to the Director of Public Prosecutions exist. If this route were to take place, it would amount to a transparent attempt to hide evidence which could still exist after more than a year of unsuccessful efforts to hide it. The major concern however is whether witnesses who remain available would still be save when this task team of police and military recruits assume their place in the “investigation”.

It is under these circumstances that the opposition parties in Lesotho and more significantly the Southern African Catholic Bishops Conference (SACBC) have expressed alarm at the turn of events in Lesotho. Ahead of the SADC Summit in Swaziland Bishop Seane on behalf of the organisation accused the SADC leadership of failing to pressurise Lesotho government to implement the recommendations of the Phumaphi Report. The statement was very critical but came short of accusing the leaders of complicity. It probably should have said so.

The question then is why there has been this state of affairs. More importantly, the question is whether there has been a deliberate retreat by SADC on this matter as was suggested by Minister Moleleki, contrary to what was in the Record of the latest Gaborone SADC Double Troika Summit, or whether this is due to incompetence by SADC. If it’s the former, how was the whole fraud arranged?

Shortly after the SADC Double Troika Summit in Gaborone in January 2016, in several media announcements, the different arms of the Lesotho government went into overdrive to inform the people that even though Prime Minister Mosisili had ultimately taken the Phumaphi Report from SADC, after he had vowed not to, its recommendations would not be binding and the government would choose what is acceptable and what is not. An all out campaign to lobby SADC and other international organisations was launched. The most prominent of those activities was a mission to both Botswana and Mozambique in February 2016.  The lobbying troupe was led by Deputy Prime Minister Metsing with several Ministers and officials. The initial focus of this group was to seek to negotiate with both the SADC Chair and the Chair of the Troika on how to soften the decisions. When Metsing’s troupe failed to soften the stance of the SADC leadership a new strategy was adopted and that is what has led us to where we are.

After the Maputo meeting, Metsing and those around him now began to pronounce that government would implement the decisions of SADC but that would take time. From that time onwards, the question was to stall everything while giving the impression of accepting the decisions. President Nyusi in his letter to Prime Minister Mosisili seemed to have seen through that strategy. He thus followed up the meeting with Metsing’s troupe with a letter which demanded specific timelines of implementation. But the letter went further to indicate that the credibility of SADC was on the line if it was not able to ensure that there was implementation of its decisions. Lesotho government was fully aware of the fact that an outright rejection of the decisions was out of question. Trying to water down the decisions in practice without seeming to reject them was found to be the best way forward. It must be clear that the government never wanted to implement the decisions since it was from the beginning complicit in the crimes which the military did on its behalf.

Nyusi’s deadlines passed without any action. Late in the day, another Double Troika Summit was held in Gaborone in June 2016 and it still produced no concrete results. This has left observers asking themselves whether SADC is willing to enforce its will.  Indeed all that SADC was able to do in the 28 June 2016 Summit was to urge “the Government of the Kingdom of Lesotho to urgently fulfil her commitments through demonstrable implementation of SADC decisions.” Even more surprising was that more than a year after deciding to establish the Oversight Committee referred to earlier, SADC then decided to operationalize such a committee. But what is more puzzling about SADC is that the operationalization of the Oversight Committee which the Secretariat was directed to do immediately has either not been done or has been done but is not visible. The Oversight Committee referred to has not set itself up and it has not been able to show its presence in Lesotho. This has been a total disaster because the situation in Lesotho continues to deteriorate. Several more Members of Parliament have had to flee the country fearful of their safety. More significantly, several members of the main coalition partner’s Youth Leaders fled the country fearing for their lives just like the opposition members had been doing since 2015. Though those have since returned from South Africa where they had fled to, they have been recounting the horrors of exile even though they were there for slightly over a week.

The Lesotho situation is not getting better. Failure by SADC to resolve the impasse, whether caused by complicity or incompetence will come down to create a fertile environment in most of the countries concerned sooner rather than later. The majority of the SADC countries themselves are moving rapidly to face political crisis which later may proceed towards a security crisis. Let’s all be aware that failure to assist a neighbour engulfed in insecurity leads directly to insecurity in your own country.

We all hope that the August Summit of SADC in Swaziland will have a closer view of what impunity does. We hope they will look sympathetically at the tribulations of the wives and children of the Lesotho soldiers who have been detained and tortured for more than a year. We also hope that SADC will also sympathetically look at the potential loss of over 40,000 jobs by Lesotho’s factory workers if the country’s eligibility status in AGOA is revoked.  The issues of accountability and lack of a functioning rule of law environment has been highlighted by the US to the Lesotho government as an issue which will not allow the renewal  of the status unless rectified. All these are a result of a government which is beholden to rogue elements in the LDF.

The 1990s brought about competitive politics to the Southern African region. In most cases however, democratic elections brought into power politicians from dominant political parties which abused their dominance and created democratically elected despots whose only focus was how to entrench themselves and line their pockets. While this was part of the political journey, it brought about arrogance and corruption. The emergence of self-serving leaders was a result of that dominance which led some politicians to believe that elections were a route to their coronation rather than anything else. The dominant   party syndrome was bound to disappear as people became more conscious and sources of information became more dispersed.

In recent Southern African political history however, there have been indications that the dominant party system was declining. The decline was more noticeable in Lesotho where coalition politics at the national level came to the fore from 2012 to the present. Coalition politics is expected to be one of the main means of government formation in the region in the next few years. In South Africa, at least three metropolitan areas will have to be ruled by coalition governments as a result of the inconclusive Local Government Elections of 2016. The issue therefore is what role losing political parties have in government formation in divided societies?

Traditionally winning parties have had all the power after elections, but as the Lesotho case has shown, minor parties or those who have lost the elections can become even more dominant than the largest party in a coalition. As South Africa inexorably moves towards coalition administrations in Johannesburg, Nelson Mandela Bay and Tswane, there is a need to evaluate situations where losing elections gives losers more power than the winners of elections. It is unusual but experience has shown that through dogged refusal to submit to the majority party and refusal to bargain but grandstand, the loser can transform weakness into a temporary strength in a coalition.

The 2012 coalition government in Lesotho and the current coalition government have been dogged by the junior partner assuming more power and influence than the numerically senior partner. In 2012 no political party had an overall majority after the elections. Out of the 120 seats, the parties which formed the coalition had just 61 seats in parliament (ABC 30; LCD 26 and BNP 5). While the ABC provided the position of the Prime Minister, LCD insisted and got almost all the key Ministries of Finance, Education, Foreign Affairs etc. Sources indicated that the negotiations were always stymied by Metsing, leader of LCD who always insisted that no government could be formed without his support. For his efforts, Metsing secured the position of Deputy Prime Minister. His favourite expression then which I understand he continues to wield in the current coalition is “U ea ntlhoka!” That means that the senior partner cannot rule without his concurrence. Emphasis on being a king-maker rather than ensuring that the coalition achieves its objectives poses the greatest threat to the sustainability of any coalition.

Even after the coalition government had been formed, Metsing sought to exercise a veto on all decisions of the government on the basis that consultations are the only basis of moving forward on any issue. Clearly consultations are important in the sustenance of the government of that nature, but that does not remove the power of the Prime Minister under the Lesotho Constitution. What Metsing sought was essentially to be Prime Minister in all but in name. When that was not achieved he ensured that the coalition was brought down by working inside it to undermine and bring it down.

The 2015 elections which were a result of the collapse of the previous coalition government brought about another coalition. This time, the Democratic Congress (DC) was a majority party in the coalition with 47 seats. The biggest loser of the elections was the LCD which had lost more than 50% of its 2012 support (its seats were reduced from 26 in 2012 to 12 in 2015). It was however the second biggest within the coalition. Using the well known “U ea ntlhoka” stand; Metsing was once again able to manoeuvre himself into being Deputy Prime Minister and also the most powerful member of the government. He also ensured that he consolidated his informal control of the military to a formal control with one of his supporters as a Minister of Defence and National Security. It is under his control that the security situation in Lesotho has ended up being a subject of international scrutiny by SADC and other international institutions.

The power of the loser of the elections has become even bigger in the current coalition government. Indeed the dominance of the LCD in the present coalition is unquestionable. It is largely as a result of this dominance by LCD that the internal conflict within the DC is accelerating, with some in the DC beginning to question why a 10% support party has eclipsed their bigger party. In a recent radio interview, Litjobo, one of the youth leaders of the DC plainly indicated that their main gripe is that a smaller party is attempting to swallow a bigger one. It dominates the government and now is attempting to swallow the DC. The lure to retain power has not moved the top leadership of the party to heed the anguish the youth leaders feel. The loser of the elections is dominant.

As the results of the South African Local Government elections sink, the question of how coalition governments in the municipalities will be formed raises the spectre of minority rule as the Lesotho case demonstrates. In all the aforementioned municipalities, either the DA or the ANC can cobble a coalition government with the support of minor parties particularly EFF which got around 8% in the elections. In the initial pre-negotiations shot Malema, leader of EFF is reported to have said that he could only form coalitions with a party which will accept EFF’s principles particularly on the land issue. If he is to stick to this, it means that there is no possibility of genuine negotiations on what form of administration is needed for the municipality, but the submission of the bigger parties to EFF would be the prerequisite for agreement. Like LCD, EFF is fully aware that bigger parties in divided societies become so desperate to get to office without power. In essence this negates the power of the electorate who would have expected proportionate influence of the small party in a coalition.

The question however is whether the dominance of small parties in a coalition is sustainable? If the EFF were to emulate the LCD strategy of not only securing positions for its leaders, but also vetoes decisions in the municipalities, would that serve the community? Coalition politics at the best of times is difficult to manage, but people who go into coalitions must always go there with open minds. Without flexibility coalitions break down and service delivery suffers. Let us hope that EFF will not adopt the Metsing stand of “U ea ntlhoka”. If you don’t submit to my dictates, the coalition will be undermined and dissolved. Coalition governments are the only way forward in most of Southern Africa as the older political parties splinter and lose support.  Let those who were used to dominant political party model learn that they need to bargain with smaller political parties. At the same time smaller political parties must also learn to accept their status as small rather than to try to swallow bigger political parties.

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.

Hands up, those who can rewind quickly and still vividly remember the happenings of Friday 29^th 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 29^th August 2014 to 22^nd 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 27^th 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 29^th August 2014 to 22^nd 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 12^th 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

Overview

On Sunday 19^th 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.

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.