Government’s decision to snub the SADC inquiry currently underway in South Africa could have serious consequences for Lesotho, analysts have warned.
Lawyers representing state organs before the commission have decided not to be part of the proceedings, arguing the probe was only mandated to operate in Lesotho.
The commission, chaired by Botswana judge Justice Mpaphi Phumaphi, was established to investigate the murder of former Lesotho Defence Force (LDF) commander, Maapankoe Mahao, on 25 June this year.
Lieutenant-General Mahao was killed by fellow soldiers in Mokema, with government alleging he was resisting arrest for his part in a foiled LDF mutiny when he met his death.
After hearing several testimonies at the State Library in Maseru beginning 31 August, the commission moved to Thaba ‘Nchu on Thursday last week to interview Basotho who fled Lesotho for South Africa fearing for their lives.
The exiles asked the commissioners to interview them in South Africa, saying they did not feel safe to do so in Lesotho.
However, government lawyers refused to be present at the South African hearings, insisting they are illegal because the 10-member commission was established by Lesotho law.
King’s Counsel (KC) Salemane Phafane, a member of government’s legal team, last week said the decision not to attend the hearings in South Africa was because the inquiry cannot operate outside Lesotho.
He added: “The minute they start operating outside Lesotho under whose laws the inquiry was born, they are no longer commissioners but just ordinary people.
“Remember, they were sworn-in here in Lesotho. For instance, Justice Phumaphi is a Botswana judge under that country’s laws, hence his swearing-in here before he could begin his work.
“This basically means the commissioners don’t have the powers to swear-in people in South Africa and those oaths are not valid if done outside Lesotho.
“This Commission of Inquiry was established under the Public Inquiries Act of 1994, which does not provide for extraterritorial application. It was not established by SADC as many would want it to appear.
“That is why we will strongly contest the admissibility of any evidence given to the commission outside Lesotho’s jurisdiction. As far as we are concerned, the evidence should be considered inadmissible and not even make the commission’s final report.”
But analysts who spoke to the Lesotho Times this week described the snub as “a desperate bid to avoid logical conclusions that the commission might arrive at”.
The commentators added because of SADC’s emphasis on accountability and cooperation, government should expect some backlash from the regional bloc.
Professor Mafa Sejaname of the National University of Lesotho (NUL)’s Political and Administrative Studies department, on Monday told the Lesotho Times: “Government’s decision not to participate in the commission’s proceedings in South Africa is indicative of people who don’t want to cooperate. But this could have very serious implications on Lesotho.
“Remember this is a commission of inquiry, not a court. It is therefore at liberty to find evidence wherever it sees fit. This is just a desperate bid by government to dispute evidence given in South Africa.
“Another issue of utmost importance is this is not a commission of the government of Lesotho but SADC.”
According to Prof Sejanamane, by distancing itself from the South African proceedings, government was reneging on its promise to support the probe.
“It’s a broader issue of non-compliance with international laws because Lesotho is a member of SADC bound by the regional body’s decisions,” Prof Sejanamane said.
“If the commission feels the need to seek evidence in South Africa, it should be at liberty to do just that. This is just a question of government trying not to honour its international obligation and SADC won’t accept that.”
Prof Sejanamane added: “Government is the one that gets the backlash if they do anything contrary to SADC expectations. SADC has put a lot of emphasis on accountability and strongly urged Lesotho to cooperate.”
Lesotho Council of Non-Governmental Organisations (LCN director, Seabata Motsamai, also believes government should not have snubbed the hearings in Thaba ‘Nchu.
“Government should know the strength of the commission, which is political, rests solely on the shoulders of SADC,” Mr Motsamai told the Lesotho Times.
“This is just an attempt to frustrate Phumaphi. When you pit political power against legal power, political power will prevail.”
Mr Motsamai further said instead of preparing to reject evidence given in South Africa, government should have ensured the environment was conducive “to allow those exiles to return to Lesotho to testify”.
“The political pressure will be even stronger now because South Africa, as a country, and the SADC leadership, are very much aware Phumaphi is holding proceedings in the Free State,” Mr Motsamai said.
“Government’s best bet is to allow Phumaphi to build his report using the evidence he has gathered, then make submissions to the judge of the evidence they wish to contest. They can be given the privilege to assess evidence per witness, and contest it based on that analysis.”
Mr Motsamai also pointed out the Public Inquiries Act 1994 clearly states commissions of inquiry “report to the prime minister but in this case, (Pakalitha) Mosisili yielded his powers to SADC by saying the commission’s report should be directed to the regional body”.
He continued: “The day Dr Mosisili agreed that the Phumaphi commission would report to SADC, he yielded some of his political powers. My understanding is the commission reports to SADC.
“Mosisili will only get the report as secondary information. In the end, political pressure will prevail over legal pressure.”
Dr Motlamelle Kapa from the NUL’s Social Sciences faculty, argues by inviting SADC to help resolve its challenges, Lesotho undertook to support the commission unconditionally.
Dr Kapa further adds if evidence already put before the commission is anything to go by, “then those people were justified not to want to come and testify in Lesotho”.
Government’s decision to snub the proceedings and reject the evidence, he further says, could be “a ploy to suppress evidence”.
Dr Kapa also says government is at risk of losing the argument because the commission’s strength is “more political than legal”.
“The minute government called SADC to intervene by establishing the commission, it also suspended any issues pertaining to jurisdiction. Jurisdiction shouldn’t be an issue here,” Dr Kapa added.