The mirage of SADC’s Commission of Inquiry

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on_phoofoloBy Advocate Haae Phoofolo (King’s Counsel) 

I joined the legal profession in this country almost 40 years ago and I have served in various capacities as a senior public servant with the Central Bank of Lesotho (Deputy Governor) and later a politician.

I equally served as chairman of the infamous interim government following a brief collapse of Ntsu Mokhehle’s government two decades ago. I have not openly discussed this issue publicly but shall reserve an open discussion on the issue for another moment in one of my memoirs due for publication.

After a stint in prison on trumped-up charges of violation of foreign exchange laws (a politically motivated prosecution) at the Maseru Central Prison almost 30 years ago, I then devoted myself to the course of Human Rights and thereby experienced the humbling journey of representing various persons in courts of law as a legal practitioner in private practice in a career that evidently spans three decades.

From those professional exploits, like many of my colleagues in a similar trade, I have directly bitten the bullet and directly challenged various governments of the day and earned unsavoury names and brutal character assassination exploits – something that comes with the territory in our field of trade as lawyers and later learnt that it is even worse when one is a politician. My take on issues that I shall discuss herewith have nothing much to do with my profile as either a politician or a lawyer but as a worried Mosotho man speaking from the cave.

The view that I shall seek to express in this context is premised not on my arrogant tale of my exploits and escapades but my broad-based experiences in the history of this country post the independence phase. The fate of this country is left in the hands of gossip and sheer speculation and public policy issues are often discussed within the context of demagogue propaganda and I will deliberately avoid following suit. Whilst on that point, for the first time in my experience as a lawyer of 40 years, I witnessed a harrowing sight of members of the army entering the High Court clad in military regalia, with their faces covered in balaclavas and overly armed with lethal machineguns as if though they were preparing for war. Within sight of this horrendous ordeal was a man also dressed in military regalia, handcuffed and manacled in chains and openly moving in agonising pain which later unravelled to have been instigated at the behest of his colleagues after having been severely tortured. For the next two to three weeks, a trail of similar incidences became common ground in the High Court of Lesotho. It is within this context of an openly unstable environment of constitutionalism and democracy that the nation bemoaned the state of affairs prevailing in the current regime that a supra-national intervention was sought.

I know, and neither can I recall of any other factor that prompted the SADC (Southern African Development Community) intervention not unless I am reliably advised otherwise. The official publication of the gazette that articulates the terms of reference of the commission of enquiry that followed an extraordinary SADC summit has several features which are worthy of elaborate discussion. The commission is chaired by Botswana-born Mr Justice Mpaphi Phumaphi, a man who boasts the UBLS (and later N.U.L.) as his alma mater and a former classmate of mine in my early years of scholarship. It is clearly styled as a peculiar ad hoc commission which boasts senior members of the military and police from our neighbouring countries. To give it a gloss of some transparency there are two seats reserved for civilians.

In the first place, the major critique that one can stage against the establishment of this commission lies in the fact that this commission is nothing but a white elephant with no judicial powers. The Minister of Police did not miss the moment, in this regard, by confidently assuring his supporters of this glaring fact subsequent to the decision of its establishment. Quite apart from this glaring reality is the question of the unnecessary and burdensome expense which is to be borne by the taxpayers of this economically fragile country.

The past experiences of commissions of a similar nature did not do much but to pacify the nation and to strategically mull political dialogue which has been sparked by bad decisions made by my political colleagues. A case in point is the Leon commission which later led to the institution of litigation by an incumbent judge complaining about certain aspects of the commission’s findings which openly attacked her professional credibility and incidentally encroaching on the sacrosanct dynamics of the separation of powers doctrine by illustrating the Prime Minister’s open attempt to challenge and attack the judicial decisions in an extra-curial platform.

History seems to be repeating itself and we do not seem to be learning from our past experiences. This approach evidently seems to be re-inventing itself in the present context because as its port of call, Section 3 (1) (a) of the gazette provides that the commission shall inquire into various changes in the top leadership of the courts, such as the appointment of a new President of the Court of Appeal, on their legitimacy and ability to tackle the various criminal and civil issues that have or will come before them in relation to the issues before the commission.

The genuineness of this inquiry is left to doubt mainly because the appointment of the President of the Court of Appeal is not the only one that was put in motion by the previous regime – even that of the incumbent Chief Justice was made by the same government of which I was evidently a party. The selective manner of dealing with judicial appointments that were carried out by the previous regime leaves a lot to doubt over the genuineness of the enquiry to the extent that one can safely draw a conclusion of political bias and double standards. What makes it even worse is the fact that the issue of the appointment of the judge president was put to rest after the attorney general’s (supported by the deputy prime minister) unsuccessful bid to have him removed from office in the Court of Appeal.

It is perhaps a debate for legal scholars and analysts to interrogate the propriety of this term of reference and the most likely constitutional oddities which it may necessitate. The question being: whether the Prime Minister has the powers to establish a commission (which does not even have judicial powers for that matter) that seeks to interrogate an issue that has already been laid to rest by the most superior court in the land. It can safely be argued that this initiative is nothing but an attempt by the government to strategically subject the appointment to political scrutiny and to subject the decorated judge president of the Court of Appeal to the court of public opinion after its failed attempts to have the man removed through legal means. I can only anticipate a strong constitutional challenge to this proposed endeavour. Further afield, Section 3 (1) (b) of the same gazette seeks to interrogate the previous regime’s attempt to have the Director of Public Prosecution and the Attorney General removed from office. The real value and relevance of this enquiry is of no consequence because both officers’ appointments are still intact following the former’s successful challenge in the Court of Appeal. The enquiry in this context is geared towards serving a political purpose and nothing more. It may well serve the purpose of politically demonising the previous regime for their attempts to have the said officers removed but is it really necessary when the courts of law have already pronounced themselves on the issue? The oddities and perhaps legal challenges which may otherwise flow from the gazette are further exemplified by Section 3 (1) (c) and (d) – both of which seek to inquire into the ‘lawfulness’ of the removal the two controversial commanders of the Lesotho Defence Force (LDF). It is perhaps significant to indicate that the incumbent commander of the LDF never challenged his removal from the command of the LDF and no judicial pronouncement over the issue was made. The other appointed commander, who is now late, sought to challenge his removal and he met his death while the matter was still sub judice.

The real challenge with this approach is that the commission is now endowed with ‘judicial powers’ to inquire into the lawfulness of the removals of the rival commanders when it is admittedly not a judicial body as contemplated under the constitution of Lesotho and neither can one conclude that SADC would seek to endow itself of supra-judicial powers over an independent and sovereign state like Lesotho. This is particularly moreso when the same body (SADC) led by the same leaders who are now mediators, was instrumental in the collapse of the SADC Tribunal, a body which even though it was politically branded as imperialist, was going to serve a very good purpose of subjecting tyrannous governments to scrutiny. We openly see a display of hypocrisy and double standards in the mediation efforts of Deputy President Cyril Ramaphosa.  To add further salt to the wound, the subsequent sections of the gazette seek to endow the commission with the mandate of enquiring into the events of 30 August 2014. This effectively means the commission is now substituting itself for the Lesotho Mounted Police Service and now seizing criminal investigative powers and even assuming the government has consented to this avenue – what is going to become of the findings of the commission in this respect when an influential member of Cabinet and minister of Police has already publicly and categorically stated that the commission does not have prosecutorial powers?

The Prime Minister himself publicly ‘thanked’ the military for his re-assumption of power and the context in which this was said was largely criticised in some quarters. The glaring reality is that the current government is by all means compromised and inclined to adopt an element of inertia and aloofness when the military engages in all of its atrocious activities because it is a product of the 30th August events.

The nation is at odds with itself as a consequence of the event that culminated on that given day. The government has always been in denial over the interpretation and meaning of the events of the day and deliberately and perhaps conveniently so. The manner in which the terms of reference are framed in this respect is thinly worded to accommodate the government’s view instead of being framed in a broad-based all-embracing manner that seeks to delve into the root cause of the issues involved. What the participants of the ruling government are not aware of is that the Kingdom of Lesotho is not a democratic state led by civilian authority but a military state. The relationship between the cabinet and the military shall remain tenuous for as long as the relationship of convenience sustains. For the fact that the Prime Minister, in his own words, acknowledges that he has been reinstated by the military clearly means that he is just a front and a rubber stamp. The Prime Minister did not even address the nation himself following the demise of the former commander and remains a mystery why that was not the case when the nation was clearly on its knees at the material time. The painful reality is that Lesotho is a military regime and not a democracy at all. As if this was not well understood, the Prime Minister’s newly appointed political advisor, who is ‘ironically’ the former chairman of the Independent Electoral Commission, confirmed this state of affairs in not so many words when he indicated to a foreign broadcaster that the army in the small Kingdom is ‘independent’. This position or view was further sanctioned by the incumbent Minister of Defence and Security. How exactly can it be expected that an institution that has access to ‘violence’ should function independently from civilian rule which is sanctioned under the constitution of the land, defies logic especially in circumstances where the said army openly flaunts atrocious acts of torture on its members.

In the ultimate analysis, the reality is that this commission, instead of mending the wounds of wounded sections of society, effectively promotes anger and frustration upon them. The price of reconciliation in this small country can only be achieved if it is balanced with justice. The tears of the respective widows of a security guard and policeman who died when the army was on its toll are still evident on their cheeks. This is not to mention the brutal killing of the former commander and the detained soldiers who were equally tortured. The value of the lives lost and the painful torture perpetrated upon military members currently in detention cannot be compensated by anything under the sun. Beyond our political affiliations as politicians either in government or in opposition, we all have to remember our moral obligation of driving this nation forward and that cannot be achieved with this current state of lawlessness prevailing in this country. At this rate, it is embarrassing for anyone to proudly proclaim patriotism when a nation is evidently on a downward slide mainly because of our selfish interests as politicians.

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