lesothoanalysis

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

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

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

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

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

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

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

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

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

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

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

Overview

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

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

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

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

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

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

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

Why Constitutional Review?

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

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

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

 Reform Process

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

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

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

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

The past week has been traumatic for past and present dictators in the world. The jailing of 88 year old former general Reynaldo Bignone for twenty years in prison for his role in Operation Condor, under which an international death squad was set up by six South American military dictatorships during the 1970s and 80s has been one of the most significant developments in post Nuremburg jurisprudence. While the Nuremburg in the trials, former Nazi military personnel were jailed for the crimes they committed during the war, in spite of their sterile defence that they were obeying orders, the jailing of Bignone indicates that avoiding jail because of holding power is a temporary escape. Justice will ultimately prevail.

The plan, as recounted in court, allowed death squads from Argentina, Bolivia, Brazil, Chile, Paraguay and Uruguay to cross into one another’s territory to kidnap, torture and kill political opponents who had fled across the border. Persecuted in their own countries, some were ultimately tracked down and tortured and killed. After their illegal arrest in all above countries, the victims were made to “disappear”, usually by being cremated, or thrown drugged but still alive from military planes into the Atlantic Ocean. (www.theguardian.com/world/2016/may/27/argentina-last-military-dictator-jailed-over-role-in-operation-condor)

Luz Palmas Zaldua, lawyer for the Centre for Social and Legal Studies which represented the victims’ families pointed out that this was the first time that the existence of Operation Condor has been proved in court. “It is also the first time that former members of Condor have been sentenced for forming part of this criminal organisation.” Two things are important besides what Zaldua has said.

First, is the point that holding power is temporary. All the dictatorships including the Argentinian one attempted to protect themselves from accounting for their crimes by use of power and also making laws which would ostensible not allow them to be able to be charged for their crimes. They forgot was that what they have done can and would most probably be undone in the future by successor regimes.

Second, the case indicates that time is not a factor for all those who are still alive. Bignone and several of his colleagues who have been jailed now are over 75 years old and they are now being jailed for crimes which they committed in 1970s and 80s. Not only have they lost power, but they are answering for the crimes they committed 40 years ago. Temporary hold on power doesn’t ensure that there is indefinite impunity.

The above leads to consideration of the state of affairs in Lesotho following the Phumaphi Report. Amongst the significant findings of the Phumaphi Report Commissioned by SADC are the specific identification of crimes which need to be investigated and taken to trial. All the crimes identified were allegedly committed by high ranking government and military officials.  Lately, some leading  government political allies have espoused thee view that they will say to SADC that they are ready to  implement the decisions taken in Gaborone, Botswana on 18/01/2016 but will drag  the process and ensure that none of the people who have been fingered in the report ever face trial. It is a case of cynicism and duplicity. Having failed to convince SADC that Lesotho’s refusal to take action against its allies in the military who have tortured, murdered and committed some of these crimes is sustainable, the government seems to have decided to behave like a typical African socialist by indicating left and then turning right. This is to publicly declare that the recommendations from the Phumaphi Report will be implemented while taking measures to prevent any meaningful action to implement those.  Like Bignone and his co-conspirators, they assume that the passing of time will make their victims and their families forget their agony. That is unlikely to happen.

There is no suggestion in the Argentinian case that Bignone himself tortured, drugged people and threw them into the Atlantic Ocean. He was found to have been part of the criminal gang which did so in his political capacity. This is where the cases below have a wider significance than to implicate the military personnel who committed them. It is about the Command which was part of that conspiracy and also the political leadership which participated and attempted to shield their foot soldiers from accountability after committing the crimes. This is precisely why the Bignone case must leave both the political and military leaders in Lesotho trembling. They will eventually be tried!

Paragraphs 122-127 of the Phumaphi report provides the contexts of the political scene in Lesotho. The paragraphs provide an overview of the political shield that was provided by the political leadership to the crimes allegedly committed by the military. It also provides a picture where the relations between the military and the civilian leadership is made clear. The military is not under civilian control and the political leadership is inextricably linked with the section of the army which is linked to some of those crimes. In particular Paragraph 122 specifies:

Evidence led before the Commission is that at the Security Sub-Committee meetings led by the Deputy Prime Minister, Commissioner Tsooana raised issues of LDF suspects who were being sought after by the police which Lieutenant General Kamoli shielded. Evidence led is that the Commander was not willing to release these officers and that the Deputy Prime Minister’s security was instead beefed up by deploying some of these suspects to his security detail. (My emphasis)

It is because of this inextricable linkage between the political leadership and the military that the crimes which are allegedly committed by some in the top echelons of the LDF have to be considered. It is these crimes which, like those committed by the former leadership in Argentina, will ultimately be accounted for by both the political and military leadership in Lesotho. Amongst the crimes listed by Phumaphi are the following:

a) The list of cases in which members of the LDF are alleged to be involved, where the LDF Command is said to be blocking the cause of investigations, include; Morija Police Station CIR 673/01/12 attempted murder, Mafeteng Police Station CIR 30/04/12 murder, Mohale Police Station CIR 03/04/12 attempted murder, Mokhotlong Police Station CIR 274/06/13 attempted murder, Leribe Police Station CIR 12/04/13, Thamae Police Station CIR 146/05/14 murder, Police Headquarters CIR 778/09/14 murder of a police officer, Maseru Police Station CIR 2535/02/15 murder of a security guard and attempted murder of an LDF member. (Paragraph 136  of the Phumaphi Report)

1. b) The Report also writes about the fact that the LDF has become a law into itself as corroborated by warrants of arrest issued on 17/04/2014 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. (Paragraph 138 of Phumaphi Report)
2. c) On the killing of Mahao by LDF, the Report observes that Sechele has identified himself as the Operation Commander. He was further identified together with Hashatsi as part of the team that was in the scene when Mahao was killed allegedly resisting arrest. This is a version which the Commission specifically rejects. (Paragraphs 131-133 Phumaphi Report) The operation to kill Mahao, even though it was not labelled as such, involved many more people within the civilian administration and the military. Accountability therefore will go beyond those who pulled the trigger.

In the recent past, there has been a furore in Lesotho about the implementation or otherwise of the Phumaphi Recommendations which SADC has now endorsed and are thus a regional consensus. Some people in the ruling coalition government have even suggested that those decisions like the removal of Kamoli as Commander of LDF cannot be implemented. The issue for me is that the decisions will be implemented sooner or later.

The delay to enforce the implementation by SADC is a setback but not a critical issue.  It is sometimes normal in international institutions that action is delayed. But the case of Bignone illustrates that accountability for all the crimes which are presently held hostage by the political quagmire in Lesotho will ultimately be had. Even the rumoured attempts to legalise in one way or another the commission of cases of High Treason, murder, torture and defeating the ends of justice through an amnesty law, are futile. Another law to reinstate those cases will be made in the future. This is not a mere hope. It is a promise! No law legalising crime will stand even after 40 years.

As I signed off here, word came out from Senegal that the AU backed criminal trial of former Chadian President Habre has been completed and he has been sentenced to life in prison for crimes committed while in office more than 25 years ago. Another pointer that committing crimes and using office to shield you is only short term measure.

The twenty first century has for good or for worse brought about change in both the structures and ethos of governance. It’s not long ago that whoever was in government in Africa thought that he could do anything internally including torturing and murdering citizens. The bad old days were characterised by the government leaders almost canonising the principle of non-interference in their internal affairs.  It was indeed internal affairs to misrule and kill people on a large scale with the understanding that all outsiders would close their eyes and ears so that they could pretend that they have not seen people being killed and also that they have not heard the screams of anguish by people being tortured. This is the legacy of the 20^th century.

The 21^st century brought in a new era. It is the era where democracy has come to trump all other systems of governance. But more importantly it is an era where good governance and accountability have become the norm. At the international level governments are now subjected to the template of good governance. Indeed the United Nations General Assembly resolution on the responsibility to protect was specifically a counter to the old ways of pretending that killings within a domestic environment were not the concern of the international community. Those who dislike this norm are outcasts who no longer merit support by their peers and international partners. Indeed the dinosaur mentality, a relic of old politics, still exists. Such mentality however has consequences as the Lesotho case shows.

Three examples on this will suffice. They point to a country which is desperately moving towards the precipice without regard to the consequences.

Ø  In the Southern African region, SADC has adopted far reaching decisions on Lesotho requiring it to undertake specific constitutional, public sector and security reforms. It has gone further to demand that the rule of law be restored to the country and specifically that LDF Commander, Kamoli must be relieved of his command;

Ø  In line with this consensus that the rule of law is wanting in Lesotho, the US through two of its agencies (MCC and AGOA) have made its displeasure clear about the state of the rule of law in Lesotho. Specifically the two institutions dealing with those areas of cooperation with Lesotho have insisted that further cooperation is dependent on the implementation of Phumaphi/SADC Commission recommendations;

Ø  The EU has withdrawn budget support for Lesotho because of failure to adhere to certain accountability standards agreed earlier. But more importantly, the EU has, like other international partners officially urged the Lesotho government to implement the decisions of SADC.

It is for the same reason that a number of civil society organisations have similarly marched and provided Prime Minister Mosisili with their demands that the implementation of the Phumaphi Commission be implemented in order to save jobs endangered if AGOA status was revoked by the US.

It is thus not surprising that when I was attacked at the dead of night on the 6^th May 2016, where gunshots were used and my bedroom windows were smashed, a variety of national and international organisations expressed concern. The concern was not just for the individual concerned. It was within the context of lack of stability and the rule of law in Lesotho. It is within this context that the Chairperson of the AU made a statement condemning the aforementioned attack and decrying the lack of rule of law in Lesotho. It is this breaking of ranks by the AU Chairperson with her peers in Lesotho, who live in the old world where international organisations only hear from the government that has irked the government. The government’s reaction to the AU statement had three strands, but all tied up to the past ways of doing things.

First came Moleleki, Minister of Police who on the whole says that the AU has no business on the attack and should not have got involved, after all nobody was injured. He says that the matter never even made its way to a security meeting he held a few days later. In trying to respond, Moleleki actually confirms the view that in his view security is preoccupied with other things, and not those things concerned about protection of human life and property. For him the attack would have been significant only if injuries and death had occurred. His is a world of denial and defensiveness and should be regarded as mere theatre!

Interestingly Moleleki goes on to rhetorically ask “Who is this Sejanamane whose attack could be said to have caused instability and the deterioration of the rule of law in this country?” (Lesotho Times, 19 May 2016). If Moleleki had only read a Statement made by the Senate of the National University of Lesotho on this matter; and the statement by the AU Chairperson on the same issue, he would not have had to ask that question. You can always trust such structures nationally and internationally to give you a view of the standing of the individual they talk about. Those institutions don’t judge people on the basis of their social and political climbing but how they are regarded by their peers around the world. Unlike others, the truth be told, whose only qualification for eminence is their skill in social climbing, a University Professor is a knowledge creator who is not expected to be acknowledged by Moleleki’s elk whose only qualification is being a minister. Being a Minister is no qualification!

In another bizarre response, Communications Minister Letsatsi, in an interview in Harvest FM while correctly pointing out that he had not seen the Statement from the AU sought to distance the attack from the present Lesotho quagmire  but suggested that the possibility of the attack  being  linked to my colleagues at the University. Why he did not elaborate. But could I also suggest that such an attack could have been linked to people working with Letsatsi?

Finally comes the pronouncements of Foreign Minister Sekhamane, of the “bloodbath fame if Kamoli is removed from office”. For Sekhamane, the AU statement is not legitimate. It did not follow the right channels. It was smuggled through by a Mosotho who works at AU on behalf of the opposition. Just imagine! Sekhamane’s world is warped in time. His is in denial and paranoid whenever he sees a Lesotho citizen whom he does not control. He promised to hold a press conference soon to clarify these issues. We can expect great theatre and no substance since his knowledge of the world is shockingly minimal.

The reaction of the Lesotho government to the instability in the country is difficult to understand by outsiders, but generally clear to people who live in Lesotho. Some of them can only survive in an environment of instability. Instability ensures that they cannot answer for their crimes in the courts of law. This tends to be so for those, as Machiavelli pointed out, that leaders who inherit their success are more often more likely to fail than self-made people who are forced to learn important life lessons during their own climbs. Let those who have ears hear! But it is important to see theirs as a syndrome hence we should always try to find an antidote to their illness rather than leave them alone.

The government is now relying more on force rather than intelligence. Let them remember one of  Machiavelli’s sayings that “One must therefore be a fox to recognise traps, and a lion to frighten wolves”. Force in not everything, particularly when you are on the wrong side of history.

In several posts in lesothoanalysis and other media, I have attempted, maybe unsuccessfully, indicated that Lesotho has been undergoing a serious political and security crisis. This has reflected itself in several high-level murders of people in the military, the police and civilians. Some of these heinous crimes have been listed in the Phumaphi Report and suspects have been listed who need to have their day in court and hopefully a long stay in prison. None of those murderers have been arrested and none will be unless the perpetrators are arrested by an outside force. This crisis has also manifested itself in the flight of all opposition political leaders whose parties are represented in parliament. It is a strange situation where leading a political party which has support condemns you to exile.

SADC which had commissioned the Phumaphi Commission has made several decisions, including that of relieving Kamoli of the Command of the LDF and the arrest of the rest of the criminal gang which has been shielded by Kamoli’s Command and the connivance of Prime Minister Mosisili’s government. None of those decisions have been implemented. Realistically they could not be implemented without outside supervision. We know that Kamoli refused to leave office when he was dismissed by former Prime Minister Thabane. Nobody could have expected that he would comply with the latest attempt directed by SADC to leave office or to arrest himself and those of his Command who have been fingered by the SADC Commission as involved in High Treason, murder and other serious crimes. They, like everybody who has committed crimes, need a superior force to ensure that they answer for themselves in independent courts. Lesotho of today is a hostage of those who fear to account for their crimes. They think that they will always have weapons of war to thwart whatever attempts made to make them account for their actions. This is why political thuggery will escalate in Lesotho.

Saturday morning (07/05/2016) at 2.00 a.m. CAT, when me and my family were asleep they came, fired two shots and when we scrambled for safety, they went on a rampage throwing stones into my bedroom windows. When their mission was complete, they left probably through the same route they had followed through the fence which they had cut to create an entry into the premises. They did not as much as talk or attempt to get into the house. They were either on an assassination or an intimidation mission.  They did not succeed in either, as this post indicates.

For two and half hours me and my family were in hiding and aware that the puppets who were destroying my property would probably stay long enough for one of us to try to check what was happening outside, thus giving them an opportunity to kill and then be able to report to the puppeteer that the mission has been accomplished successfully. We were better advised to huddle in a safe place. It is only after light came that we felt confident to check the damage. In the past, it used to be said that a man’s house is his castle. It is no longer so in Lesotho. Your house is now a place where one has to fear that those who are committing crimes can find how to kill you or keep you hostage.

As to who has been involved in this crime, I have no interest. I don’t blame the puppets but the puppeteers. I have very little regard for cowards who either cover their faces when they commit crimes, or come at the dead of night to attempt to murder or intimidate people. The key issue is that the hired guns are like mercenaries, who fight other people’s battles for a piece of silver. They are a despicable lot!

What I stand for is a country where democracy reigns supreme; a country where there is accountability by all, particularly the government; a country where the rule of law is prevalent. We have to outgrow the old system of hero worship and blind obedience to those who are in power. Power without the necessary moral authority is bridle and those who rely on it are doomed because it does not last. But even when it lasts, history has shown that the long hand of justice catches up with them. In Chile as we speak the crimes which were committed by the military junta in the 1970s-1990s are being accounted for. In wheelchairs some have just been committed to prison where they belong.

The attempt to intimidate and silence me is a futile exercise. Most of those hired guns were not born when we resisted previous regimes including the military junta in its many phases which took over power in in Lesotho in the eighties. Ours is a fight for justice. Guns and stones cannot stop the March of history. Even if I am the last one standing I will still resist. If all of us who want accountability fall, could the last one put off the lights!

The Context

Lesotho politics in recent times has been before and after the Phumaphi Commission Report. The Report which was commissioned by SADC after the horrendous developments of detention and torture of over sixty  LDF members; exile of over twenty others and all opposition political leaders; and the murder of Lt. General Mahao by members of the LDF, has set the tone for politics in Lesotho. The report sets out certain accountability standards which the Lesotho government is unwillingly being forced to adhere to.

The Phumaphi Commission as already pointed out in earlier posts investigated roots of instability in Lesotho in general, and the murder of Mahao in particular. Amongst the key issues which the Commission recommended are the following:

1. a) Removal of Lt. General Kamoli as Commander of the LDF;
2. b) Suspension of all those officers in the LDF suspected of involvement in High Treason and other cases of murder, while their cases are being further investigated;
3. c) All physical evidence held by the LDF in criminal cases including that of the murder of Mahao be surrendered to the police who should be capacitated.

These recommendations are straight forward but from the beginning observers could see that  the government would find it difficult to implement them since it meant that it is being pushed to separate itself from those of its allies above who have been identified as the key cogs in making Lesotho ungovernable and using the army as a refuge for committing crimes. The Report identifies several cases ranging from High Treason to murder for well over twenty of the most senior officers in the LDF.

It has been the central message of this blog that accountability and rule of law are no longer optional in view of the broad international consensus that those standards should be national norms. A contrary perspective has been put forth by Lesotho government propagandists that adherence to those norms is a matter of choice. Thus some have made hay of the fact that Lesotho is a sovereign state with the ability to make its decisions independently. At the beginning the argument ran this blandly, but as more developments took place whereby their case became ever more tenuous, they began to steer clear of the central issues, but viciously attacked anybody who argues that the only open route is the one in the SADC decision of January 2016.

In the recent past however, key Lesotho international partners have had their say on the direction they would expect if Lesotho were not to suffer international isolation and probably worse consequences.  We have had the withdrawal of budget support by the EU because of accountability issues. The MCC has recently suspended consideration of a new multi-million dollar compact to the country because of concerns about accountability and rule of law concerns. Again the US has now indicated that Lesotho’s 2017 eligibility for AGOA will be dependent on the implementation of the Phumaphi Report Recommendations.

These recommendations are about accountability and the rule of law. In a country which operates within the law these should not be a matter of debate. But they have become central in discussions in Lesotho with those allied to the government attempting to minimise the impact of SADC decisions on those recommendations.

 When Denial is Idiocy

Like Tariq Aziz, former Iraqi Deputy Prime Minister, who denied the presence of U.S. troops in the capital while all could see them five hundred metres from where he was speaking, there continues to be a futile attempt to portray the situation in Lesotho as peaceful and stable and with the government in control of the situation.  The propagandists have however not been able to explain why there has been a Phumaphi Commission of Inquiry in Lesotho. They have equally not been able to explain why both AU and UN Peace structures have had a say in recent weeks about the situation in Lesotho leading them to decide to establish a liaison and support for SADC in its endeavours to bring about peace and stability in Lesotho. They have equally been unable to explain why two structures of the US government, MCC and the Trade Section in the President’s office dealing with AGOA have all been insisting on implementation of the SADC decisions arising from the Phumaphi Report. The only thing that one increasingly hears is the mumbo-jumbo about sovereignty and ill-thought-out aspersions about some of the regional leaders who are handling the Lesotho case.

State propagandists are however increasingly finding that what they publicly say and what happens on the ground are completely different. Three examples will suffice to illustrate what they have been going through.

They vowed that the Phumaphi Report would not be accepted and published until the Hashatsi case, was finalised in the Lesotho courts. Prime Minister Mosisili brought the Report from Gaborone on the 19^th January 2016 and had it published soon after;

They vowed that they are not bound to implement the recommendations of the Phumaphi Report. After one week of a futile shuttle diplomacy by Deputy Prime Minister Metsing to Botswana and Mozambique, Metsing ended up telling the media that the government will implement the recommendations.

Ø  After declaring that opposition political party leaders in exile had no credible reason for fleeing the country, the government has been feverishly negotiating for the return of those leaders with security in line with the letter by Mozambican President Nyusi to Prime Minister Mosisili. Incidentally, the propagandists have at the same time argued that Nyusi has no credibility in the Lesotho matter since Mozambique has its own internal difficulties leading to some people taking refuge in Malawi.

What this essentially means is that state propaganda points to the opposite direction to what reality is. But as this divergence increases, the shriller becomes their attacks against whomever they see as disagreeing with their delusional perspectives. But for misinformation to be effective, it must be intelligently driven rather than to concoct facts and hope that what one puts in the media will be taken as the truth. It is important to emphasise putting out information to the public arena requires a bit of intelligence and skill. These are not the attributes which some of the government propagandists have. Theirs is merely to say what they believe their employers would like to hear. It is this what makes it difficult to have sensible conversations about Lesotho politics with those who see their job as defending positions rather than providing credible information.

The conversation which has emerged in the past few months or so on Lesotho politics, has been marred by people who mean to deceive rather than to inform. It is a conversation which goes beyond talking to the wall. It is one where ignorance and deceit predominate. For some, the important thing is to parrot whatever they think will please their employers. It is a conversation with idiots and parrots rather than a discussion with peers.

Overview

The Lesotho crisis has been rumbling now for over three years with several individuals trying and ruining their reputations in the process. A concerted process however was begun by SADC in July 2015 when it decided to set up an International Commission of Inquiry to investigate among other things the drivers of the Lesotho instability in general and the murder of Lt. General Mahao by members of the Lesotho Defence Force (LDF) in particular. The Commission led by a respected Botswana Judge, Justice Phumaphi submitted its report to SADC in November 2015 and that was endorsed by the SADC Double Troika in January 2016 in its Summit in Gaborone, Botswana. The Phumaphi Report, as it has come to be known, has now become the basis upon which Lesotho’s international relations with its regional and international partners revolves. Indeed the Phumaphi Report recommendations provide the template which is used for judging whether to provide assistance and trade in those areas where accountability and rule of law are conditions for support.

Even before we venture into the key issues of Phumaphi and the conditionalities, we must remember that in these days of political and security crisis in Lesotho, the country is perhaps in its most vulnerable. There is a huge unemployment crisis which people hardly talk about, but if not dealt with, will explode sooner rather than later. While in the past the largest component of that unemployment rate was largely the unskilled workers, lately it has also ballooned to unemployed graduates. Secondly, statistics have recently indicated, that Lesotho has the 2^nd highest HIV/AIDS prevalence in the world. That is a phenomenal challenge for a poverty stricken country which also has no credible health facilities to talk about. Thirdly, as things are the country is facing a huge food shortage as a result of not only unimaginative polices, but also the worst draught we have experienced for decades. Prime Minister Mosisili in December 2015 declared a food emergency and called for food aid from international partners. These are hard times.

Several pointers of our performance indicate that dark days are not far-off unless there is a change in direction. Implementing the Phumaphi Commission Report recommendations has an added urgency since the broader international community is now using that as a yardstick on which Lesotho will be judged. As pointed out in an earlier posting, both the African Union and United peace structures have now joined the campaign to have the Lesotho crisis resolved on the basis of the Phumaphi Report recommendations. Those are applying political and diplomatic pressure. The United States on the other hand is turning in the screws on the economic front. This is most uncomfortable in the context of the fragility of both the economic and political structures of Lesotho.

Key Issues of Phumaphi Report

As mentioned earlier SADC endorsed the recommendations from its Commission in January as per its Communique issued on 19^th January 2016. This was reiterated by a subsequent letter to Prime Minister Mosisili in March 2016 where he was given timelines for implementing the decisions. The most significant of those decisions are essentially four:

1. a) Relieve Kamoli of the Command of the LDF because of his alleged involvement in the crimes not only of High Treason, murder and violations of rule of law in other instances but also the perception that he is a divisive character within the force. A precondition for security review requires that the person who is at the centre of the crisis must give way lest he frustrates and interferes with the process;
2. b) Restore the rule of law by suspending all those in the LDF who have cases ranging from High Treason to murder while their cases are being further investigated. The physical evidence which they have must be handed over to investigators. It’s normal in any democratic system that while investigations are undertaken those who can destroy or contaminate evidence must be removed from their positions;
3. c) Ensure the return of the exiled opposition political leaders in conditions of security. In addition ensure that all exiled Basotho are provided with a safe return to the country;
4. d) Undertake Constitutional, public sector and security review in order to minimise the recurrence of the situation in the future.

These are straight forward issues which any government which does not have blood on its hands should be able to accept unconditionally. The fact however is that for some in the government are deeply involved in the above transgressions by those elements in the LDF who are now the focus. But for others, there is unimaginable fear of Kamoli’s potential retribution if his carefully constructed haven was blown away. They are really afraid!

Enter the Americans! Future of Agoa Eligibility for Lesotho

As we are aware AGOA was enacted by the US in 2000 for qualifying African States to facilitate and improve duty free access to the US. From the beginning, AGOA was conditional on states to be committed to the observance of the rule of law; make efforts to combat corruption; have economic policies to reduce poverty; and protect workers’ rights. It was thus a reward for those countries which are focused on improving the livelihoods of their people. Market access has been a major reason for some of the factories which have moved to the different factory shells in Lesotho over the past decade. Statistics indicate that around 40,000 jobs have been created as a result of market access to the US. Granted those are low wage factory jobs, but in a country beset by high unemployment and poverty, that is not something that can be sniffed off. The overall impact around the factories and in those areas the workers come from has been observable.

One of the issues which is part of the AGOA framework is the periodic reviews that determine continued qualification. This is not an arrangement where once one is in they continue to have access. Thus the relevance of the Phumaphi Report for Lesotho’s continued qualification. Even before the report was endorsed by SADC, another US government institution (MCC) which had previously granted Lesotho over US$300 and was considering a new compact, raised the alarm about the rule of law in Lesotho. It made it clear that it was expecting clear progress in implementing the Phumaphi Report recommendations in issues of accountability and reigning in the LDF to be under civilian control. When those discussions were going on, some in the Lesotho government were arguing that there is no relationship between that and AGOA. They seemed to think that now that AGOA has been extended, it would not raise any concerns. Lesotho’s Finance Minister, ‘Mamphono Khaketla operating under this uninformed basis went so far as to tell Parliament in February 2016 that: “ I am happy to report that our trade relationship with the US remains strong and there is no threat to Lesotho’s continued Agoa eligibility”.

She overdid her emphasis because AGOA, as already pointed out, just like MCC are conditional facilities which can be withdrawn if a party to them fails the review. The ringing bells should have sounded to Khaketla, when she received a letter from MCC on Lesotho’s continued participation in MCC and the issues about Phumaphi Report. But she should have trembled when on the 19^th January 2016, US Ambassador to Botswana became the first dignitary to have visited SADC Secretariat and received the Report. He went further to state clearly that the US supports SADC on the Lesotho issue. Institutions which are funded by the US government may be many but they do not have walls around each other. They communicate. But more importantly, they are instruments of US policy. Let those who don’t know learn!

In a major blow to Lesotho recently, Ambassador Froman, US Trade Representative in a letter to Lesotho Trade Minister, Setipa spelled out that the current review of Lesotho’s eligibility for 2016 is confirmed but for 2017 eligibility will depend on the monitoring of the restoration of the rule of law and specifically the implementation of the Phumaphi Report recommendations. Lest the point is not clear, Froman went to specifics. He pointed out that the US would focus on security sector reform aimed at transforming the LDF into a professional army. “…security sector reform process that seeks to transform the Lesotho Defence Force (LDF) into professional and cohesive institution that is fully subject to civilian control, respect the rule of law, and enjoys the confidence of Basotho.” He goes on to deal with the allegations of torture of the detained soldiers and whether they are accessible to international humanitarian organisations to verify the conditions of their detention in the light of the SADC Report findings. In essence this letter places the ball squarely in the hands of the government. The future livelihoods of more than 40,000 Basotho are dependent on a sensible reaction by the government.

The initial reaction however seems incomprehensible. Khaketla was in denial from the beginning. Setipa’s responses in the press conference, if accurately captured are plain naïve. He seems to think than UK retailers can in a sense substitute the bigger US market. He should know better why Chinese firms have started production in Lesotho and the other South East Asian countries rather than produce from their home country. It’s production costs. Without free tariffs they would not be competitive.  As for what Deputy Prime Minister Metsing is reported to have said one can only marvel at the evasiveness. It is obvious that he has no clue about what this is all about. He is reported to have said that there are people who would relish Lesotho being removed from eligibility to AGOA. This is a simple matter of Metsing ensuring that the government complies with its international obligations and not about people wishing Lesotho ill. In his position, more than all in those of others, he should have understood  that he is dealing with the livelihoods of thousands of Basotho. He cannot therefore play the game of blaming people who are sounding the alarm that if Metsing and his partners don’t fulfil the obligations of AGOA, the country would suffer irreparable harm.

It is worrying that Metsing is reported to have said that he will not suffer the consequences of his actions. It is perhaps indicative of the callousness of the government that he can actually publicly say that he personally will not suffer. The last I knew people in government don’t take decisions based on whether they personally will benefit or suffer. Metsing is reported to have said:

There are people in this country who so desire that Lesotho’s beneficiary status under AGOA could be withdrawn…….Theirs is a very unfortunate quest because if it collapses (AGOA), Metsing will not be individually affected or any of the ministers. Those who will suffer most are people working in the textile factories who will lose their jobs as a result.

We may wish to take examples from Swaziland, which was removed from eligibility to AGOA in 2014. As we speak now, several factories which were affected have closed down. They continue to close down and the impact in the areas around the factory sites are telling the whole story. Burundi has just been removed Agoa and one hopes that Lesotho does not follow.

The issues are very clear, If Lesotho is to remain within the AGOA system of market access to the US, then it has to comply. Conditionalities are not always good, but when they support cases of the downtrodden rather than authoritarian governments, I will always be in the forefront in their support. Where would this country be if it was left to the whims of this government?

Introduction

In the recent past, the mention of Lesotho in international fora is about the political and security crisis. It is about lawlessness and the inability or refusal of the government to bring criminal suspects to the courts of law. The question however which tends to be missed by analysts is the source of the collapse of the rule of law. It is sometimes brushed aside by those who blame the Lesotho Constitution or those who attribute the chaos to the emergence of coalition politics in Lesotho. The two issues which have been referred to above however, have in reality nothing to do with the crisis. Indeed, Ramaphosa’s diagnosis of 2015 was that early elections would resolve the issue. They were held and produced an even bigger crisis. Similarly the constitutional review recommendations which SADC has put forth would improve the structures, but are unlikely to bring about a stable and accountable system of governance. The Lesotho Constitution may have weaknesses here and there, but those have no bearing on the crisis. Indeed the Lesotho Court of Appeal judgement on the case by the Attorney General versus the King, Prime Minister and others on whether the Prime Minister has power to recommend appointment of the President of the Court of Appeal to the King without consulting his coalition partners has put all those arguments to bed. Coalition government or not, the Prime Minister has power to take decisions.

The central issue about the Lesotho crisis is a security nightmare in general and a military crisis in particular. It is a crisis which revolves around the Commander of the Lesotho Defence Force (LDF). The dominant figure of Lt. General Kamoli in Lesotho politics cannot be exaggerated. It is a dominance which has reverberated in Lesotho and beyond. He has had a former Prime Minister run away from State House when the latter tried to fire him; has resisted to release soldiers to the police investigating murder; has ensured that those involved in the murder of his successor as Commander and the physical evidence are out of reach of the police investigators; and more importantly,  Kamoli has defied court orders to release soldiers who have been detained and tortured by his men. Fearful of him and his potential retribution, the government has been pretending that no such transgressions have taken place.

In the face of the fear of Kamoli, the noose on the country has been tightening. The Report by the Phumaphi Commission to SADC and its endorsement, have set a chain of reaction around the world to ensure that accountability mechanisms are restored.  The issue therefore is why in the face of potential adverse actions by the international community, the government has not acceded to the demands to implement the SADC decisions arising from the Phumaphi Commission. Secondly, it has to be analysed how the resistance is likely to affect the international status of the country.

Kamoli in the Lesotho Political Scene

Appointed as Commandeer of the LDF shortly before the  2012 elections which brought about a new  government, Kamoli built his stature and control of both the military and indirect control of the civilian structures at the time when there was a relative political vacuum in Lesotho. The 2012 election results had brought about an inconclusive outcome, with no political party able to form the government on its own. The first coalition government came to being. This was the time when the political parties in government were still trying to find their way in government and also trying to understand coalition politics. It was a palpably weak government leading to a situation where the military could take advantage. Kamoli embraced that. Not only did he use the transitional period to strengthen his hold on the LDF, but as evidence during the hearings of the Phumaphi Commission showed, he also used the military guards for the former Prime Minister as spies of what the latter was doing and whom he has been seeing.

It is at this time that clear signs began to show that civilian control over the military was loosening. After a year or so, Kamoli had built his power in the Special Forces, which were commanded by Captain Hashatsi, a junior officer who as he indicated in his testimony to the Phumaphi Commission, reported to the Commander. An anomaly of sorts that such a junior officer reported to the Commander. But the thing which brought everything to the surface, was the persistent refusal of Kamoli to hand over several of his confidants to the police for cases of murder and other serious crimes. The communication between the police and the army on those issues were published in several newspapers but neither Kamoli nor the government responded. It was later revealed to the Phumaphi Commission that the matter was raised by the Commissioner of Police in a Cabinet Security Sub-Committee Chaired by the Deputy Prime Minister. It let to nothing, showing that Kamoli was already a dominant figure in the government.

By 2014 there was a clear army rebellion which showed its face, by the bombing of several residences in Maseru including the former Prime Minister’s companion and the Commissioner of Police. Investigations led directly to Kamoli’s confidants in the LDF. Even here Kamoli refused to co-operate with the police. To make matter’s worse, he ignored the directives of the then Prime Minister to stop the court martial process against Brigadier Mahao who was charged for reprimanding a junior officer who had publicly declared that he would not allow anybody to replace Kamoli as Commander of LDF. Kamoli took this issue further and made the then Prime Minister to withdraw the letter. The rebellion was then in full steam, and it was not surprising to find that later when Prime Minister Thabane dismissed him, Kamoli unleashed the army against him in an attempted coup. Prime Minister fled to South Africa where he only came back to the country under SADC security detail.

By going for the Prime Minister, even though the coup did not succeed, Kamoli had demonstrated the lengths he was prepared to go. He had earlier publicly announced that would not be removed from his Command. When the new coalition government took power after the 2015 elections, Kamoli was reinstated to his Command. The consequences were immediate. Several soldiers were detained and tortured while others fled the country. The former Commander of the army who had just been removed from his Command was ambushed and murdered, thus triggering the establishment of the Phumaphi Commission by SADC. Made up of a seven political parties, the new coalition government was much weaker than the 2012 coalition of three political parties. It was in no way in a position to challenge Kamoli.

When SADC agreed with the Phumaphi Commission recommendations to remove Kamoli from office, it was clear that the government would not know where to start. Though some in the government may be attached to Kamoli, there is an even greater number whose actions would be guided more by fear than by anything else. It is as a result of this that fear that the government has been ducking and diving when confronted by SADC’s decisions on Kamoli and his confidants who are facing several charges the police have listed and are shown in the Phumaphi Commission Report.

Lesotho’s Dilemma    

SADC’s demands to Lesotho Prime Minister are simple and straight forward. It demands that people who are suspected of committing crimes in the army be made to account for their actions in the courts of law. In democratic societies there would be no need to even have to make that demand. But in a case where the Commander of the army is also involved in those crimes and has previously demonstrated that he is above the law, an international commission had to be formed, and a regional body has had to make those demands. Arrests of those armed men ensconced in the barracks cannot be easily done until their protector has already been removed from his Command. The long and short of this is that the first step in implementing SADC decisions in Lesotho is to remove Kamoli from office.

Second tier of demands are about constitutional, public sector and security reforms. These also are dependent on the removal of Kamoli. No reforms can be successfully implemented if there is a Commander who has no respect for the law. The man who refused to leave office by force in spite of the issue of an authoritative government gazette.  Even if reforms were made, what assurance would be there that he would accept the new constitutional order if he has refused to recognise the law as it is now?

However, there is now unpreceded pressure on Lesotho to implement the decisions of SADC. Three recent developments are important indicators of the amount of pressure the government faces. First is the financial pressure which the external partners have put. In recent times, the European Union has suspended budget support as a result of failure to follow financial accountability agreements. This may not be directly related to the SADC demands, but it is also about accountability. In a similar manner, the Millennium Challenge Corporation (MCC), has directly told the Lesotho government that implementation of SADC decisions is a prerequisite for qualifying for consideration of the second grant to the country. MCC made it clear that evidence must be shown that there is civilian control over the military. No such evidence, at the moment, can be shown that the government is in control of the army.

Second, is the letter from Mozambican President Nyusi, as Chairperson of the SADC Troika, to Prime Minister Mosisili which made it clear that implementation of the SADC decisions has to be done immediately but in any case no later than 31/03/2016 when a clear programme with timelines would be due to SADC. The dateline has passed but failure to implement, it was made clear, would trigger the summoning of the Double Troika.  The visit of the Executive Secretary of SADC to Lesotho a few days ago has not changed SADC decisions. Indeed it is expected that in meetings with the government she spelled out the expectations of SADC. It must be understood that there are issues which the Executive Secretary could only speak about privately with the government and not in public.

Third level of pressure that is now being exerted is at the continental and global levels by both the African Union and the United Nations. The United Nations-African Union Joint Task Force on Peace and Security in its twelfth Consultative Meeting on the 22^nd March 2016, in a Communique says:

The Joint Task Force deliberate on the on-going political crisis in Lesotho which has persisted since the 2015 elections. It recognized the timely efforts the Southern African Development Community (SADC) has made by intervening though mediation and a commission of inquiry with a view to resolving the crisis that could threaten stability in the region. While calling on all political stakeholders in Lesotho to give peace a chance, the AU and the UN will continue to support SADC in its peace efforts. The AU and UN call on all stakeholders to support the efforts of SADC and work together towards meeting the deadline of 31 March 2016 for the preparation of a roadmap to implement the recommendations of the SADC Commission of Inquiry. The AU and UN are convinced that the effective implementation of the recommendations of the SADC Commission of Inquiry presents a veritable opportunity for Lesotho both to resolve the current crisis and also avoid a possible relapse in future. The Joint Task Force called on SADC to urgently deploy its Oversight Committee in Lesotho to assist and monitor the implementation of the recommendations of the Commission of Inquiry.

What is clear in the above is that the Lesotho crisis has now become a world-wide challenge which all security and related structures are focused on dealing with. It is no longer just a SADC issue. The country is virtually under siege with all voices demanding accountability. It is now either the survival of the country or the removal of Kamoli from the Command of the LDF. It can’t be both

Introduction

The Lesotho crisis as we all are aware, has preoccupied SADC Summits over the past three years or so. All those Summits, dealt with the Lesotho issue as an irritant which they had to handle but not pay special attention to long-term solutions. The January 2016 Summit in Gaborone on the other hand, was different. It came after an unprecedented intervention by SADC in the affairs of a Member State, which seemed unable/and or unwilling to handle simple criminal cases of murder of a former Commander of its forces by his successors. It was a case where all the Leaders of Opposition Political Parties had fled the country as a results of credible threats to their lives by the same armed forces. It was also a summit which was held and received a harrowing report by an international commission of inquiry on the whole instability issue in Lesotho. The Phumaphi Report was for some an eye opener. It revealed that the Lesotho State is either held hostage by the military or it was complicit in the crimes which stretch for more than five years and are unable to be brought to the courts because the military has become a law into itself.

When SADC accepted and endorsed the Phumaphi Report in spite of fierce opposition by the Lesotho Government, an unprecedented challenge to the traditional Westphalia State System with its emphasis on sovereignty and internal affairs had been launched. SADC went so far as to threaten to suspend Lesotho from the organisation. But more importantly two of the Leaders who attended the meeting, told the media that if Lesotho is unwilling to implement the decisions taken at the Summit, they would be willing to enforce the implementation of those decisions. The letter by Mozambican President in his capacity as the Chairperson of the SADC Organ on Politics Defence and Security Cooperation to Lesotho Prime Minister Mosisili, is one step towards the implementation of the recommendations of the Phumaphi Report.  The meaning and implications for Lesotho are immense and need to be understood.

The Tussle Between SADC and Lesotho Government

The Phumaphi Report which is the basis for the tussle between the Lesotho government and SADC essentially spells out short-term matters which have to be undertaken by the government in order to stabilise the country. Those include the following:

1. a) Relieve Lt. General Kamoli of his commission as Commander of the LDF. The rationale is spelled out clearly by the Commission. He is a divisive force within the army who vowed vengeance on those in the military who rejoiced when he has fired by the previous government; he has harboured and protected soldiers who have committed murder and other serious crimes throughout the country; he is more importantly accused of involvement in a case of High Treason (Paragraph 138 Phumaphi Report).
2. b) “….all LDF officers implicated in cases of murder, attempted murder and treason be suspended while investigations in their cases proceed in line with international best practice pending investigations, all the soldiers who have been accused of committing crimes ranging from High Treason to murder also listed in the Commission Report (Paragraph 140 (b) of Phumaphi Report.)
3. c) Facilitate the return of all the exiled Basotho and provide security for the political leaders who are in exile.

The Commission further recommended that the recommendations made by SADC Facilitator, Cyril Ramaphosa at the end of his first mission to Lesotho, for constitutional, public sector and security reforms be implemented, since it had become clear that some of the challenges Lesotho faces arise from constitutional confusion, and unprofessional and politicised public service and security services. This was viewed as a long-term process which would be discussed in the August 2016 Summit of SADC.

The dilemma has been that the government has been frozen with fear and complicity to implement the critical short-term measures which would allow for undertaking of the long-term measures. The government is fearful of the retribution of Kamoli should they try to remove him. They are aware of his earlier declaration that he will not leave office. At the same time they are aware of an equally unmovable stance of SADC that he should leave office.

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

Faced with the reality above, SADC has had to act firmly to ensure that the rule of law is brought back in Lesotho in spite of the delaying tactics of the government.

Nyusi’s Diktat  

Following a visit to Mozambique by Deputy Prime Minister Metsing, a clear message was received from SADC as shown in the Record of the meeting. First and foremost the Lesotho delegation was left in no doubt that the decisions of SADC in the Gaborone Summit in January 2016 have to be implemented in full and without exception. This put to bed the arguments which at the local level, the government had been regularly making that it will pick and choose those recommendations it felt like.

The meeting of the 25^th February 2016 in Maputo first of all put specific timelines for the government. It set the dateline for implementation of the recommendations with immediate effect and submit a progress report to the SADC “…on each recommendation with a clear roadmap and time-lines in line with the decisions of the 18^th January 2016 SADC Double Troika Summit. The progress report should be submitted by Friday 4^th March 2016”.

In his follow-up letter to Prime Minister Mosisili, President Nyusi writing on the 11^th March 2016, goes back to the Record and reminds the Prime Minister that the progress report was due on Friday 4^th March 2016. This means that there was no extension of time for submission of the progress report. But he goes further to make two issues which have been little talked about. First, while the Communique from the SADC Summit dealt with the facilitation of the return of the exiled political leaders, Nyusi now elaborates this to include the all Basotho exiles. “..Finalise the Memorandum of Understanding on the safe return to the Kingdom of Lesotho of all exiled Basothos that include provisions of security to the Former Prime Minister and other opposition leaders. This process should be finalised by Friday, 4^th March 2016.” It is important to note that all along, it was as if SADC was focused on the save return of the political leaders rather than all exiles. With more than twenty army officers exiled in South Africa this interpretation of the decisions of SADC is important.

Second, the fact that SADC has now advanced the dateline for the submission of the roadmap for constitutional, public sector and security reform to the end of March 2016 is significant. While the Communique had only indicated that the matter would be discussed in the forthcoming Summit in August 2016, Nyusi now has directed that the roadmap should be submitted by the 31^st March 2016. This is to avoid the possible dilly-dallying that was observed with disappointed in the Gaborone Summit in January 2016. It is important to note that no constitutional reforms can be undertaken by the government on its own. Most of the provisions referred to in the SADC Mission on Lesotho, require a two thirds majority in parliament. The government has a bare majority in parliament. The cooperation of the opposition would be imperative if there was to be any constitutional reform. But the opposition are unlikely to offer any cooperation unless the security issues which have forced the political leaders to flee the country have been resolved.

Meaning and Implications of Nyusi’s Diktat on Lesotho

At the centre of the tussle between SADC and Lesotho government is a simple issue of ensuring that the latter is accountable for its actions and those of its agents. It is about failure to enforce the rule of law. With SADC’S firm stance on the above, we have to ponder what are the likely scenarios and implications of the standoff. The implementation of the recommendations of the Phumaphi Commission has not started. The only tentative thing that has begun is discussions with the opposition political parties. But those discussions are not and cannot be about implementation, but timeframe of implementation. That is, SADC decreed what has to happen. As such the agreements can be on type and nature of security to be provided to the political leaders and also to ensure that other exiles come back into the country once security is present.  Removing Kamoli as Commander of LDF is thus a prerequisite of the settlement.

For Lesotho, two scenarios present themselves if the government fails to implement the decisions which it has been directed to implement by SADC. First is the isolation scenario. Lesotho would be isolated and sanctioned by SADC. In its present state of poverty and lack of resources, the country cannot sustain itself even for a month. The 1985 situation whereby the apartheid South Africa slowed down movement at the border leading to the collapse of the government is an example of what it would mean to be isolated. It is important at the same time to understand that international public opinion was at that time with the Lesotho government. At present, the Lesotho government would be unable to find any support internationally, since it is essentially standing for the wrong values. Protecting criminality can never endear the government to other states. This would lead to a collapse.

Another scenario, is one whereby an expeditionary force is dispatched to disarm and arrest the suspected criminals for prosecution. When South African President Zuma told the press that the decisions would be implemented by SADC on behalf of Lesotho if the government refuses to do so, he could only have been thinking of this option. This option has its complications since it would involve bringing a violent end to the army rebellion which has been present for over two years. The Phumaphi Commission indicates that the LDF has become a law into itself. There is no civilian control over the army and that is essentially what stands out in Lesotho. But it must be clear that it needs not result in the actual use force. It could end with a clear indication that force will be used. Certainly surrender would follow.

Both scenarios would lead to suffering by the people. But the rebellion would end and normal politics would begin. When the SADC Executive Secretary lands in Lesotho on Tuesday, 30^th March 2016, a day before the expiry of the dateline for submission of the roadmap for constitutional, public sector and security reform, one hopes that the government will have seriously considered its dilemma. It should have considered its fear of its internal allies and what could befall the country if it does take action.

Professor Mafa M. Sejanamane