South Africa, the organ chair at the time, labelled Lesotho’s security situation as ‘explosive’ following the killing of former army chief, Maaparankoe Mahao, by his military peers on 25 June. According to the Lesotho government, this took place during an attempt to arrest him for alleged mutiny.
Meanwhile in Lesotho, a case challenging the commission is pending in the High Court. In addition, senior government officials have bluntly stated that the commission’s findings will not be binding. The apparent standoff between Lesotho and SADC has fuelled perceptions that critical aspects of the report could be watered down to make it acceptable to the Lesotho government.
This will not be the first time that a SADC Commission of Inquiry report in Lesotho becomes a source of diplomatic tension or public outrage. It was also the case in 1998, when the final report of the Langa Commission of Inquiry into electoral malpractice was released. A leaked version of the initial report detailed damning findings on the government, which were omitted in the final version. The latest report will therefore yet again be released amid a backdrop of high expectations, but also tension and scepticism.
The developments preceding Mahao’s death also provide the context to the inquiry. Two months prior to his killing, the country’s new seven-party coalition government fired Mahao and reinstated Tlali Kamoli as Lesotho Defence Force (LDF) Commander. Kamoli was discharged from this position by the previous coalition government in 2014, and he is arguably a polarising figure in Lesotho politics.
Tom Thabane, the prime minister at the time, accused him of an attempted coup and other violations. While no one has been held accountable for the events of August 2014, in June 2015, the LDF instituted mutiny charges against some 50 LDF members from the same time period. Mahao was fingered, but never charged or detained. A court martial has since been established to prosecute 23 of these soldiers.
Thabane, now the official leader of the opposition in Parliament, fled the country after alleging an LDF plot to kill him. At present, all of the Parliamentary opposition leadership is in exile, and their remaining colleagues are boycotting Parliament. The total number of opposition members of Parliament (MPs) is 55, while the governing coalition has 65 seats in Lesotho’s 120-member legislature.
Lesotho has a long history of partisan politics where the army has been used to protect political interests. In turn, politicians protect the soldiers. Selective accountability is a longstanding trend, and impunity is entrenched.
Those in power have been emboldened to perpetuate this cycle. So, navigating Lesotho’s political minefield was never going to be an easy task for SADC.
True to this fact, Justice Phumaphi opined that the government and LDF were uncooperative and had frustrated his attempts to establish the facts on the ground. The Lesotho government also clashed with SADC about the court martial, the commission’s terms of reference and its jurisdiction.
With regard to the latter, it argued that the commission did not have the power to operate outside of Lesotho’s borders when it conducted hearings with exiles in South Africa. Lesotho also disagreed on whom the commission reports to, and to whom it should hand over the report, arguing that it was established under a domestic law called the Public Inquiries Act. Under the act, the commission would be obliged to submit the report to Prime Minister Pakalitha Mosisili, who has discretion on which recommendations to accept. The report is then tabled before Parliament and senate within 15 days of being received.
This means that Mosisili could table the report either in the way it is originally submitted by Phumaphi, or he could omit some of its contents. These are some of the key reasons why the report is so highly anticipated in Lesotho, particularly by civil society and opponents who demand that it be made public immediately.
For Mahao’s family, the findings will have deep personal significance. Exposing the reasons, actors and forces behind his death could be the first step towards their healing and closure, as well as getting some form of justice in the courts. More importantly, issues such as the role of various political actors (including Home Affairs Minister Lekhetho Rakuoane and Deputy Prime Minister Mothetjoa Metsing) may be laid to rest. Both men are alleged to have had some role in, or knowledge of, the plot to eliminate Mahao.
Secondly, for the opposition and other political actors in exile, the credibility of their narrative hangs in the balance. The Lesotho government has failed to guarantee their safe return, arguing that there was no real threat to their lives. Parliament opened in October and has been in session without them. An existing law restricts the period within which MPs can be absent from Parliament without written permission from the speaker ‘for one third of the total number of seating of the House.’ They could therefore stand to lose their seats; however, the law could also be contested. It is difficult to calculate this period when Lesotho’s Parliament has failed to sit for at least one third of its own seatings consecutively.
The future of the soldiers charged with mutiny is also a concern. The sentence for this crime is the death penalty; and many in the country have questioned the haste with which the process has been handled. Human rights, the rule of law and access to justice will therefore all be affected by what the commission finds and recommends with regard to these men.
There is great interest from Lesotho’s international partners too, including the United Nations, the United States and the European Union. They have called on the government to thoroughly investigate Mahao’s death, take action against the perpetrators, and also to show commitment to both the rule of law and reform of politicised public and security institutions.
The Phumaphi report is awaited with bated breath in Lesotho. There is bound to be friction, whichever side the weight of blame and condemnation might fall. Given the current depth of rancour, managing reactions is going to be a challenge. And in the end, the report may suffer the fate of others before it; it could be altered, ignored by the executive or both. The hope in Lesotho remains that its contents will not have been tampered with, and that it would eventually provide the basis for a genuine and long-lasting resolution to the country’s intractable problems.
This article was first published by the Institute for Security Studies and is republished here with their permission.