Should national security trump the rule of law?
MORDEKAI MUSUNDIRE
MASERU – The rule of law continues to haunt Lesotho’s successive governments. In a development reminiscent of the proverbial chicken and egg argument, Lesotho lawyers are peeved by the army command’s earlier suggestion that national security should be viewed at par with the rule of law.
Lesotho’s troubles with the rule of law have put the country under the spotlight within the SADC region for more than a decade, and it seems the dilemma keeps rearing its ugly head regardless of which government takes the reins of power.
Mortal struggle
The legal fraternity, along with various civic groups, have of late been locking horns with the army over the direction they think the government is taking as far as the rule of law and constitutionalism are concerned.
The trigger has been the series of pronouncements by the heads of the security cluster and Prime Minister Samuel Matekane himself over how the Famo terrorism should be curbed.
Today, lawyers for human rights have had back and forth correspondences with the Lesotho Defence Force (LDF) command over pronouncements that they say are threatening to them.
LDF Deputy Commander, Major General Matela Matobakele, recently declared that lawyers and judges handling cases involving individuals arrested by the army on suspicion of having committed crimes were “senseless.”
In a letter on behalf of the President of the Lesotho Lawyers for Human Rights (LLHR), Advocate N. Mafaesa described Major General Matobakele’s attitude as “abhorrent and illegal” for suggesting that the army should be granted carte blanche to undermine the rule of law without consequences.
“The constitution must be respected by all, and the courts are final arbiters, not soldiers,” Mafaesa warned. Lesotho’s human rights lawyers further caution that it is the duty of the government and its institutions to respect and observe the independence of the judiciary.
Apology
Pressure group Section 2, which operates under the tagline “The Advocates for the Supremacy of the Constitution,” weighed in with scathing criticism of both the Prime Minister and the army over remarks that “not only undermine the rule of law but also threaten the very foundations of our democracy and the fundamental human rights of all people.”
Section 2 also reminded Major General Matobakele that some years ago he along with several other soldiers was forced to flee the country from the same army.
“It is deeply ironic and profoundly disturbing that the same Major General Matobakele, who has previously been a victim of the army’s atrocities, now speaks against the very human rights defenders and judicial processes that protected him.”
Urging all human rights defenders to condemn the statement, Section 2 demanded an apology to the nation from both the Prime Minister and the deputy army commander.
Seeing matters were coming to a head, LDF’s command earlier this week extended an olive branch by proposing a meeting between army heads and Lesotho’s rights lawyers to clarify matters.
Unfortunately, LLHR could not attend the meeting scheduled for August 13 due to other prior commitments.
In their response to the proposed meeting, LLHR took further issue with the army’s statement insinuating that the rule of law was not above security considerations.
“LLHR is seriously troubled by the articulated point of view attributed to Lieutenant General Letsoela in Paragraph 3 of your letter, which reads in part as follows:
He appreciates (all legal practitioners of the Kingdom of Lesotho) functional responsibilities bound to protect the human rights of all persons without fear, favour, and prejudice, hence the Command’s feeling that the notion of the Rule of Law must be balanced with prospects of national security interests for the good of the public and integrity of the state.”
Seedbed of mayhem
A series of events under the first coalition led by Motsoahae Thabane in 2012 opened the sad chapter in Lesotho’s experience, whose fallout continues to send after-shocks to this day.
The army under the incarcerated Lt. Gen. Tlali Kamoli hounded out many figures, including Prime Minister Thabane, who had to temporarily seek refuge in South Africa.
The disturbances claimed the lives of army commanders Lt. Gen. Maaparankoe Mahao in 2015 and Khoantle Motšomotšo in 2017. An attempted coup also led to the death of police officers as the army and police struggled for power.
The subsequent Phumaphi Commission gave birth to SADC forces’ temporary presence with the attendant broad-based national reforms, which are still on the national agenda today.
Under the present government, fresh trouble started last year when the army commander, in league with his colleagues in the police and intelligence service, issued a statement threatening extrajudicial interventions to restore order.
This culminated in a decree banning Famo music groups outright as a means to rein in terror. The army commander, Lieutenant General Mojalefa Letsoela, has however, since cleared the air, suggesting the statement by his deputy, which LLHR took issue with, was misinterpreted.
Instead, he said, the army meant that they (judicial officers) should be protected due to their importance in the administration of justice and rule of law.
Maj. Gen. Matobakele’s remarks came during a welcome ceremony of the LDF’s third contingent from the South African Development Community’s (SADC) mission in Cabo Delgado, Mozambique, on July 31, 2024, at the Makoanyane Barracks.
The remarks angered the Law Society of Lesotho, which said the Constitution guaranteed every person human rights and the army had no authority to take matters into their own hands “when the courts were there to determine the guiltiness or otherwise of any accused person.”
The army earlier this week met the Law Society President and his deputy, Adv. Letsie Moshoeshoe from the Attorney General’s Office, Prime Minister’s Office Chief of Staff Sofonea Shale, Coordinator of Parliamentary Affairs Khosi Makubakube, Lesotho Council of NGOs Commissioner of Human Rights and Democracy Seinoli Mohale, and the Development for Peace Education’s Lemohang Molibeli.
The LLHR excused themselves, citing other earlier commitments. Lt-Gen. Letsoela said his deputy had not threatened judicial officers but that emotions could have taken over. He then apologised for any inconvenience the statement could have insinuated.
“I am grateful for Adv. (Napo) Mafaesa’s (of LLHR) letter which came as a shock. The content made us sit and decide as the army command to call this meeting.
“We have high-profile cases that involve soldiers and require the services of lawyers to administer the rule of law. The rule of law speaks of individual human rights and their protection.
“Lawyers are important, hence, I took an effort to attend to Ntate Mafaesa’s letter. I called him and asked to meet him, and he positively agreed. There was a misinterpretation of the content of the speech, and I realised it had caused a lot of confusion.
“We saw the impact of that statement and the turbulence it was bringing. We therefore appeal for peace from those who may have been affected.
Famo factor
Prime Minister Matekane has also not been spared similar criticism after urging soldiers to curb family excesses by any means necessary.
His remarks, made while welcoming soldiers from a tour of duty in Mozambique, recently attracted severe criticism from civil rights groups and opposition parties who described the pronouncements as a slant towards authoritarian rule.
This week Sarele “Lehlanya” Sello, in a video that went viral on social media, criticised the LDF’s command for targeting his group Terene ea Khosi Mokata, despite the fact that his was the only Famo group legally registered with the Law Office.
In a thinly veiled threat to the army bosses, Sello said in the video, “The LDF commander, his deputy and spokesperson, remember power fades, and in the future you will long for the same peace we are clamouring for.”
He went on to pay tribute to both former commander Kamoli and former Prime Minister Thabane, whom he said both had a better approach to addressing Famo troubles.
Cannibalising the Constitution
Meanwhile, it seems there is no settled end in sight to a stable constitutional democracy after the Transformation Resource Centre (TRC) this week issued a statement warning Members of Parliament (MPs) not to dismember the Constitution “under the pretext of amending specific clauses.
Piecemeal changes of select laws will likely open floodgates of contentious litigation since some of the proposed changes on the table endanger the very structure of the 1993 Constitution itself.
TRC suggests a complete overhaul of the Constitution, with proper consultations, is imperative at this point. Basotho await the fate of the broad-based national reforms, bankrolled by mainly the European Union (EU) and spearheaded by SADC support.
The reforms are considered the panacea to Lesotho’s perennial instability. At the just-ended SADC heads of state and government summit in Harare, Zimbabwe, the gathering commended the SADC Panel of Elders led by former Tanzanian President Dr. Jakaya Kikwete.
He supported Prime Minister Matekane in assuring the region’s leaders that the reform process would be successfully completed. On the other hand, political parties remain divided over whether or not to give the green light to ensure the reforms sail through and the matter is finally put to rest.
Only the former ruling ABC among the opposition has so far officially pledged to support the government on the reforms.
The rest of the opposition camp has put conditions that have to be met before they can support the government on the reforms initiative. Clearly, a long road lies ahead before the nation reaches consensus on matters relating to the rule of law.