The SADC Commission of Inquiry into the circumstances surrounding the death of former Lesotho Defence Force commander, Maaparankoe Mahao, is a very significant component of the region’s intervention in the Kingdom.
Although SADC’s intervention in Lesotho has and continues to be elitist, exclusionary and therefore systematically and technically disenabling popular sovereignty, there is general consensus among elites and citizens that the Commission of Inquiry is an important measure though for diverse reasons. When people refer to this inquiry as the Phumaphi Commission, one may think they know it but listening to some comments, expressions and also expectations, what remains critical is the question: What is the SADC Commission of Inquiry?
Unscrupulous politicians insulate themselves from public control through holding information from citizens. Sometimes information does not reach citizens because those who have it begin to engage in sophisticated contestations, thus turning citizens into mere spectators or blind followers of actors. This is what constitutes elitist and exclusionary processes. Without information, citizens may not be able to engage leaders effectively and when they try, they would always be ridiculed for acting from a wrong premise. In a similar manner, for robust engagement and informed debate on national issues including forming expectations of the Phumaphi Commission, the question which should be mastered is what this SADC Commission of Inquiry is. Some people see this Commission as yet another false start. They are worried that while Justice Mpaphi Phumaphi and his team may remain professional in conduct, the buck stops at political level. For those who heard the Honourable Minister of Police saying the Commission will not generate prosecutable material, those who read the Public Inquiries Act, 1994 Section 8(3) that the Prime Minister may withhold any portion of the Commission’s report if, in his or her opinion, national security, the privacy of an individual and or right of a person to a fair trial outweigh public interest and those who saw SADC mismanaging the much-anticipated and understandably professionally conducted and well-written Langa Commission report, Phumaphi is seen as a professional who is likely to remain firm but for no ultimate good.
For this group, the SADC Inquiry will only be able to expose but politicians will always call the shots. There are also some people who see the Phumaphi Commission as a friendly, good-spirited and harmless body which cannot get anything it may want except that which witnesses may be willing to give. Other people believe the Commission will be able to tell who killed Mahao and why. These are people who believe that this Commission will expose the hidden truths and force government to be assertive. There is also an innocent expectation that Phumaphi will tell who the rightful commander of the Lesotho Defence Force is and somehow instruct Lesotho politicians to behave in a particular way. Phumaphi, for others, is a panacea for Lesotho’s political deterioration, including the centrality of the army in the political history of the Kingdom. But what is the SADC Commission of Inquiry?
On 3 July 2015, the SADC Double Troika sat in Tshwane in South Africa and decided, among others, to establish a Commission of Inquiry into circumstances surrounding the death of the former LDF commander, so it is a SADC creature. This was followed by Legal Notice 75 of 2015 which established a Commission of Inquiry on disturbances to national peace and stability. The desire of politicians, both in and outside government, to extend the mandate of the commission beyond the SADC Double Troika decision was halted by the regional body which set aside what the government had already gazetted and proposed issues by the opposition. Legal Notice 75 (as amended by Legal Notice 88) Section 4 provides for the reporting to be done directly to the Chair of the SADC Organ on Politics, Defence and Security Cooperation and not the Prime Minister. While this removes suspicion on the potential application of Section 8(3), which in view of others, unfairly positions the Prime Minister over his counterparts, it is not yet clear whether Section 4 of Legal Notice 75 is legal. While Article 3(2) of the SADC treaty, to which Lesotho is party, stipulates that SADC has the legal capacity necessary to exercise its functions within the territory of member-states, domestication is mandatory for international agreements to be applicable in the Kingdom. This explains why the Prime Minister had to operationalize the SADC decision by invoking Section 3(1) of Public Inquiries Act to establish the Commission. Arguing from the premise that the Phumaphi Commission is a legal process established under this law, its reporting cannot logically therefore be outside the confines of the law which establishes it. The Prime Minister is not, at least by this law, empowered to designate another person to whom the Commission may report. How is this explained in legal terms? Is it legal for Phumaphi to report to Gaborone? In other words, is the Public Inquiries Act adequate to guide the Phumaphi Commission considering political realities that inform its establishment?
Section 2 of Legal Notice 75 provides that the Commission shall make recommendations as it may find fit for reconciliation, peace and stability. This provision nullifies the view that the Commission may not generate prosecutable material because it is within its right to recommend legal action. In terms of Section 15 of the founding legislation, the Commission may have coercive powers, power to compel testimony and production of certain documentation or anything that it may consider necessary for it to fully investigate the matter for which it is mandated. However, these powers are regulated because they can either be partially or fully granted. Legal Notice 75, Section 5 empowers the Commission to exercise all powers vested in it by Sections 16, 17 and 18 without restriction. This makes the Commission authoritative enough to seek and request any information in whatever form that, in its view, would enable it to establish the circumstances surrounding the death of Mahao. In other words, the Commission can request, with authority, anyone for whatever and all are obliged to respond. Some witnesses who hold sensitive information may request to do so in camera unless he or she can prove that the needed material is not relevant to the work of the Commission. In other words, no one can refuse to provide information without justification. This effectively elevates the Commission to a level higher than that of a friendly and voluntary exercise.
Whatever Phumaphi finds and recommends will be presented to SADC. How will SADC manage that? Will it handle Phumaphi differently from Langa? Phumaphi looks at the circumstances surrounding the death but SADC still has its facilitator in the Kingdom and has to establish an Oversight Committee to observe political developments acting as early warning mechanism for timely intervention in consultation with the facilitator. In other words, Phumaphi may not be everything for Basotho and it would actually be unfair to expect from him more than his mandate. At the end of the day, political leadership in Lesotho will still have to deal with Phumaphi’s recommendations, political leadership will still be tested to do things which they may not have been ready to do previously, will still be faced with a challenge of keeping Lesotho a sovereign equally treated so among sovereigns.