Is Haae Phoofolo a thief?

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The ramifications of theft of public opinion 

By: Adv. Haae Phoofolo K.C. 

IN various platforms, there have been many brazen attempts to steal the public opinion about both my professional and personal dignity and integrity. However, to my dismay, there has never been an open and frank confrontation about two of my alleged cardinal sins – theft of Central Bank of Lesotho money in the late eighties when I was its deputy governor leading to my conviction and incarceration. Secondly, my 21-day reign as the head of the interim government which sprang from my alleged theft of the late former prime minister Ntsu Mokhehle’s democratically-elected government.

There has always been an unfortunate trend in Lesotho’s political terrain by those in power to gain political mileage by way of character assassinations. Before narrating my tale, it is perhaps worthy of me to repeat what my late father once told me. The man was an Anglican priest, and he advised me one day after my admission into the legal profession: “buella batho lefatšeng ‘na ke tla buella batho leholimong”. When loosely translated it means speak on behalf of people on earth while I speak on behalf of those in heaven. The late Reverend Phoofolo may have inadvertently omitted to advise me on how to defend myself when ill-informed attacks and vengeful venom is spat upon me.

When approaching 70, it is clearly no longer a healthy exercise for a man of my age to be consistently on the defensive trying to protect and perhaps recoup the bits and pieces flowing from the destruction of my name and personal dignity. I am supposed to be making meaningful contributions in the development of this tiny country based on my ample experience as a government bureaucrat, legal practitioner and later on politician. I may have run out of Irish luck in my exploits as a politician as has often been said in some quarters, but I want to place it on record that I am neither seeking to evoke the sympathy of the public nor to gloat. However, I find it imperative to clarify my position and participation in the alleged sordid accusations my critiques have staged against me. I am not ready to apologise for being human but will be quick to rectify distortions of fact over my alleged cardinal sins.

Am I a thief as suggested by Brigadier Mokaloba or his cohorts? The first page of Adv. Kelebone Maope K.C’s Law Report of 1990-1995 Lesotho Appeal Cases (a sequel to Chief Justice Cullinan’s elaborate and comprehensive judgement) articulates the nature and scope of what necessitated my incarceration in the early 1990’s and none of the 18 counts of which I was charged were inclusive of “theft” as alleged by my personal agitators and ill-informed pundits.

The greatest shortcoming of the law report is that it does not articulate the underlying factors leading to my charge and the ill-driven political considerations which played a part. Legal intellectuals will clearly agree with me that the modern jurisprudence clearly leans in favour of an objective, transparent, independent and professional prosecution agents within the government bureaucracy and effectively yields a trend of constitutional safeguards which militate against any abuse of power by either the executive or the prosecuting authority for that matter.

The net effect of which is the insulation from ad hominem and or selective prosecution of ordinary citizens driven by ill-will and improper motives of those in power over and above principle. Perhaps, in hindsight, one may say that the prosecution of the President of The Court of Appeal seeks to innovatively assess the constitutional propriety of selective and discriminatory prosecution of an individual citizen and I shall wait with bated breath for the outcome of the said case which the entire country and the legal profession awaits with enthusiasm.

The 19th charge which was never reflected in my indictment is that of “political incorrectness” and a personal fall-out with an influential minister and politician leading to trumped up charges and my eventual incarceration. This has been the consistent trend prevailing in the Kingdom of Lesotho from as far back as the early days of independence when I was a scholar at the UBLS and in 1970 when I was one of the first inhabitants of the now infamous Maximum Security facility.

Well over 25 years after my prosecution, the same trend of my character assassination is still rife within the Kingdom. Do we ever learn? Ten years ago, there was a coordinated state sanctioned persecution and or prosecution by Prime Minister Mosisili’s government of Advocate Zwelakhe Mda (King’s Counsel) under the pretext that he had engaged in the obstruction of justice and barely two and a half years ago the same institutions of government renounced his citizenship without success after the intervention of courts of law.

The same institutions of government are utilized by those in power to protect their affiliates and sympathisers whose political correctness is without doubt and also to conversely persecute those guilty of political incorrectness.

The inherent dangers of manipulation of institutions which serve the objective of administration of justice is that it results in the further declining of ordinary Basotho’s confidence in the wheels of justice. Even worse, the entire nation has been pacified and the current Minister of Police’s criminal trial has been subjected to a natural death mainly – and this can safely be assumed – because he is the head of the very institution that should facilitate his conviction in courts of law. There is yet another critical dimension which my agitators may have overlooked and it has to do with the fact that I was still able to practice law post my conviction and incarceration – How and why did this come about notwithstanding a robust and principled Law Society that was led by the charismatic jurist Justice Churchill Maqutu?

How exactly can a fraudster and thief be allowed to practice law in the courts of law? There was an elaborate and comprehensive deliberation over the issue and records will clearly bear that I was ultimately exonerated by council’s resolution on the grounds that the crime of which I was convicted did not attach any “moral blameworthiness” rendering me unfit to practice the profession within the context of The Legal Practitioners Act.

I was convicted on the basis of non-conformity with the dynamics of the relevant fiscus laws regulating the Central Bank. I commenced practice in the early nineties after this exoneration by the regulatory body which was never even pursued but to my dismay, this issue materialised yet again post my appointment as head of the interim government in 1994 in circumstances which I shall tackle when dealing with the allegation of my theft in Dr Mokhehle’s government. But before I put my pen to rest on this issue, I must hasten to indicate that my incarceration was never an illustration of my personal shortcomings but those of the institution of government which is infested with abused and manipulated public institutions at the behest of the treacherous politicians.

The 1994 “Royal Coup D’etat” as termed by Professor Nqosa Mahao (the eldest brother of the assassinated former Lesotho Defence Force commander Maaparankoe Mahao whose assailants are still at large) in his brilliantly articulated article titled: “The Constitution, the Elite and the Monarchy’s Crisis in Lesotho” is the only scholarly article which came close to properly contextualizing the scenario that prevailed and which objectively analyses the situation as it unravelled when I (in the company of some other five persons – some of whom are ironically vocal members of the ruling regime at present) was appointed as interim head of government for three weeks.

Professor Mahao eloquently analysed the situation as thus: “…the constitutional arrangement of a royal monarch provides ample proof that neither the King nor the political elite fully accepted the sacrosanctity of this arrangement.

“This has created a particular dilemma for the monarchy. For, although the monarchy is proclaimed as a symbol of Basotho’s national unity, it has been at the centre of controversies. Like leaders of political parties, it tends to be seen as just another contestant for political power. For its part, this arises out of the need to re-claim the authority it lost when it was made constitutional.

“Because of this proclivity and the perception that it is just one of the many forces vying for power, it has often not only suffered in esteem but has also had its fair share in the tribulations which characterise post-colonial Lesotho politics.”

The establishment of the interim government was sparked not by my theft of power and the democratically-elected government, but by the political elite’s attempt to rape the institution of the Monarchy to the adverse prejudice of the traditionally accepted institutions of pivotal importance in this tiny Kingdom.

Prof Mahao’s analysis was clearly spot-on but subsequent to the reinstallation of Dr Mokhehle’s regime, the late Thabang Khauoe – a lawyer based in the capital city, launched a landmark case in which he sought to challenge the re-installation of His Majesty King Moshoeshoe II. The outcome was without success to him but the case remains as one of the glaring realities of Lesotho’s perennial challenges which stem from the delicate relationship of the politicians and the head of state.

Mr Khauoe was the leader of the legal profession and he, together with some politically-motivated professionals, lobbied yet again for my removal from the roll of attorneys both in my home country and in the Republic of South Africa and their premise was that perhaps yet again – I was a thief and fraudster and hence disqualified from practising law and generating a living for both myself and my then very young children.

Mr Khauoe was succeeded by Tankiso Hlaoli as leader of the profession and both men were then staunch members of the Basotho Congress Party regime who were clearly disenchanted with my appointment as head of interim government. Within the same period, there was an initiative by the legal profession to have me removed from the roll both in SA and in my home country and I immediately resorted to courts of law and successfully won my bid with costs but did not pursue them.

This vendetta had been staged by my colleagues in the legal profession who were politically aligned. The current state of the divided profession stems from the politicization of the profession and the failures of legal professionals to draw a line in the sand between professional and political values. The mixture of the two can become a destructive force in a tiny country like Lesotho and how I wish the young lawyers would avoid this by all means. As if that was not enough, sometime in 1997, there was yet again an attempt to have me silenced when I was arrested and imprisoned on charges of treason for my representation of certain police officers who had fallen out with the then ruling regime. The treason charge was later withdrawn and was never pursued. Seventeen years later, yet another lawyer and principal legal advisor of the government instituted a litigation in which he sought to challenge the appointment of The President of the Court of Appeal and cited the Head of State as a party in the very same litigation.

The outcome was equally without success to the attorney-general but what is significant for purposes of my illustration is that the endemic political tensions in this country stem from the theft of public opinion and the notion of demagogue political propaganda which is being spread by ill-informed agitators and pundits. There has always been a subtle intimidation and the undermining of the role of Head of State by the previous heads of government since independence and even post the 1993 democratic phase and there has been some evident signs of attempts of the said participants to emasculate the royal aristocracy from the traditional powers which it enjoyed to the adverse prejudice of the symbolic role which His Majesty is supposed to play.

A practical example is the promulgation of The Local Government Act of 1997 which was promulgated hardly two years after the national crisis. The Act in, some material respects, sought to undermine the principal aspects of the 30-year-old Chieftainship Act of 1967 and to also demote the role of a chief into a level of subjugation to the democratically-elected councillors.

The net effect of which is to solidify and concretize the role of the political elites’ powerbase to the adverse prejudice of the traditional institution of chiefs as a component of the royal aristocracy.

In the ultimate analysis, one cannot help but frankly state that the politics of gossip and propaganda are unfortunate because they fail to assess and evaluate the core national issues that require attention and neither can a governance agenda be cultivated therefrom.

I have been unfortunate to have been both a participant and victim of this ill-fated system which has since been deeply rooted in the political climate and can comfortably steal this moment and accept the brand of a thief not of central bank’s money (as suggested by Brigadier Mokaloba) but of ideas that we can interrogate in the assessment of Lesotho’s political climate beyond petty personal affronts.

I can confidently say that I am a jailbird indeed unlike many politicians in this country whose fear of jail prompts them to abuse public institutions to avoid facing the wrath of the law. Such politicians may run but at some point the arms of the law will catch up with them and the same applies with members of the military who are evading the long arm of the law.

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