Dear Mr Prime Minister,
On Monday February 8, 2016 you tabled in the National Assembly the watered-down report of the SADC Commission of Inquiry into Disturbances of National Peace and Security, popularly known as the Phumaphi Commission report, after the Commission’s chairman His Lordship Justice Mr Mpaphi Pasivel Phumaphi. In your statement after handing the report over to the Speaker of the National Assembly, you as leader of Government said you and your Government were prompted to invite SADC to form the Commission after the brutal killing of Lieutenant General Maaparankoe Mahao, and were keen to be seen as to get to the bottom of that tragedy, using highly competent and completely disinterested persons from the region.
To this was added, (i) the ascertainment of whether it was true there was a mutiny in the LDF, and Lt. Gen. Mahao’s involvement therein; alleged killings of Opposition members and kidnapping of former LDF members; (ii) propriety of removal of Lt. Gen. Kamoli and his substitution with Lt. Gen. Mahao as Commander of the LDF by the 2012 coalition government, and the reversal of the same by the 2015 coalition government; and (iii) claims that the return of Lt. Gen. Kamoli caused divisions in the army and contributed to national political and security instability.
You also said you had used your prerogative, conferred by the Public Inquiries Act No.1 of 1994 Section 8(3) and Section 8(4), to excise names of persons fingered by the Commission, and in some cases named for criminal prosecution, because they were not given opportunity to make representations in protection of their good names before the Commission; and in the case of one Lt. Col. Tefo Hashatsi because he had lodged a case in the High Court which was still pending.
To start with this last one, you are turning reality on its head here, Mr Prime Minister: whereas the law says that a person who has a case in court shall not be compelled to testify before a commission lest s/he incriminates herself or himself, Mr Hashatsi went to court after testifying, to head off a second appearance subpoena – an antic for which the court thoroughly castigated him, while also stating that he still had space to exercise the right of protection of his integrity which he denied himself by snubbing the Commission and rushing to court prematurely. In some cases, Mr Prime Minister, you said the Commission had steered into the territory from which it was shepherded away by its own chairman and SADC when you had given it mandate in that regard; for example, what you dub a “brief military operation on some police stations in Maseru” on that memorable August 30, 2014 Saturday dawn; and you find it incomprehensible that some persons have been named for treason charges in that connection – probably for the now notorious, nocturnal army siege of the State House which sent the then Prime Minister into hiding in South Africa.
By your own admission, Mr Prime Minister, and as was repeatedly made clear to both witnesses and counsel alike at the Commission, this turf was covered by the last of the Terms of Reference, which provided for probing any other matter incidental to the four main areas of the pith of the Commission’s remit. You said, whereas the Act empowered you to excise information as you did in the interests of national security on the one hand, and protection of privacy and right to fairness for individuals on the other; it was the latter and not the former that informed and motivated your expunging the names as you have done. This you invoked in the name of the rule of law. Scaringly, when you were asked in the Senate whether, in concealing the names of alleged perpetrators, you also thought of the victims, and specifically whether you shared your considerations with the family of the late Lt. Gen. Mahao; you casually retorted that the family was part of the public and would meet the details in the public domain like everyone else. It is a twisted logic that the protection of suspects’ privacy should supersede the need for punishment of the apparently arbitrary termination of life. We find it equally strange that you would prize more highly the suspect’s privacy than the sanctity of the deceased’s body, which you callously published.
This slant of yours is not surprising, given your (government’s) failure or refusal to cause the State to co-operate with the Commission, and various threats meted out to it – including denial of access to arbitrarily imprisoned mutiny suspects and boycott or thinly veiled criminalisation of collection of evidence from foreign soil (South Africa).In so doing you, however, denied yourself a rare opportunity to show statesmanship and “restore the dignity of Lesotho” as you vowed to do when you took office, by extricating the State of Lesotho from the clutches of bandits and rogues whom you are now patently shielding. This is not only an affront to the dignity of the deceased, and to the untold suffering of those who survive them, victims and families of those arbitrarily kidnapped, tortured and imprisoned for choosing to uphold good conscience; but also to regional neighbours whom you amply praise and thank for routinely intervening in the self-fulfilling, cyclical political crises of Lesotho “in the best interests of Lesotho and Basotho, and not only a section of individuals”. It could be truly, and tragically unfortunate if the publicly, indeed internationally, stated commitment of your good self to finding a lasting remedy to the wanton disrespect for human rights, sanctity of life, and rule of law, turned out to be a threadbare bluff, pulling wool over the eyes of all and sundry; including the international bodies which lauded your commendable move and await with bated breath the materialisation thereof.
It is a commonly held universal practice that no-one should be a referee where s/he is also a contestant; or judge where s/he is litigant. As head of Government and on whom majority of the ToRs turn as selector of army commander embroiled in matters which are subject of the Commission’s work; and master of the Minister of Defence who at the least cannot pass without mention in this milieu – you Mr Prime Minister are simply not qualified to judge the propriety or otherwise of the Commission’s report listing those involved in the acts whose circumstances and acceptability the Commissions was investigating. The case in point is perhaps the self-same Hashatsi; where the State as respondent including yourself, did nothing to challenge an attempted emasculation including yourself of the Commission, and whose prayers are now, not surprisingly, invoked as reasons for your adulterating the report – from foreign sourcing of evidence in South Africa, to privacy protection and right to fair trial.
The dispatching of the Report to a parliamentary portfolio committee potentially condemning it to the same fate of all the laws that emerge therefrom as they came from the Executive, can only be a window dressing meant to cast on it a hollow clout of being “property of a sovereign national parliament”, along the lines of prostituting the sovereignty of Lesotho’s courts which is hardly respected by the State – only for thwarting the work of the Commission and fruits thereof.
Against the background of the foregoing, we beseech you Mr Prime Minister, to own up to your January 18, 2016 undertaking to “provide feedback” on, and simultaneously publish, the Phumaphi Commission report as adopted by the SADC Double Troika Summit of that date. Mr Prime Minister, you conveniently forget the 1998 SADC Commission into veracity of the published general election results, chaired by the late Justice Pius Langa of South Africa and made of 14 persons from Botswana, Zimbabwe, and South Africa; which did not report to your office because it did not have to, as indeed the Phumaphi Commission followed suit because of sharing the same profile; and instead mention the fate of your very own 2001 Leon Commission into Post-election Political Disturbances, and your 2010 Steyn Commission into attacks on State House and Makoanyane Barracks, to which you consciously know the two SADC commissions cannot be reduced. By pretending that, in being honoured with conveying the Phumaphi report to the Basotho this also gives you to arrogate to yourself to disfigure what is the regional organisation’s property, destined for deployment through the hand of the head of Government of Lesotho. You are getting things wrong at the great cost to the cause of justice.
By this open letter we also take this opportunity to call upon the appropriate institutions of SADC to promptly publish the Report as it was adopted by the Double Troika Summit, in the event that you are constrained by the current morass into which you have been driven, from so doing. We equally appeal to all quarters of our citizenry, friends of Lesotho and the regional powers in these trying times, to prevail on the State of Lesotho to refrain from politicising this subject; which could well be a roadmap out of the quagmire in which we have remained arrested over the past few years.
In the interim, we once again appeal to you and your government to venerably discharge your commitments to SADC, report honestly and faithfully, including release of the alleged munity suspects. It is regrettable that in pretending to “table and therefore publish” the report, you did not in fact publish but only spoke to what you had done to it; that the nation was left in the dark about its actual findings and conclusions on its full charge. It is incumbent on you and your Government as managers of our national affairs to fully publish the report, normalise the political situation by contriving an all-party, and multi-stakeholder facility for prosecuting the implementation of the findings, to dispel the dark cloud of hate, uncertainty and suspicion that has been overhanging the nation till now. It is also our well-founded fear that your statement to the National Assembly that some of the recommendations “may not see the light of day” smacks of unilateral determination to weed out what might well be lasting solution to national problems if they adversely affect some persons you closely hold in private affection. It would be desirable if you promptly published a calendar of executions of the recommendations to bring the nation into your confidence and lend national ownership to such a scheme.
Office of the President
Action for Peace and Solidarity