NTHAKENG PHEELLO SELINYANE
So the Rakuoane-Moseneke-Metsing Bill that would see the Lesotho courts pushed aside to free from prison, or pending charges, the political and military scoundrels of the 2015 ‘Khokanyan’a phiri’ reign of terror “and their antecedents”, finally reached parliament last Friday, May 28, 2021. (3)
This was brought by the Popular Front for Democracy (PFD) leader and acting law and justice minister Advocate Lekhetho Rakuoane, known for singing the praises of Lesotho Congress for Democracy (LCD) leader Mothetjoa Metsing as a good man who was being demonised.
Rakuoane publicly took this position at the Phumaphi Commission which gave rise to the charges whose challenge Metsing lost at the Court of Appeal the preceding Friday. The misnamed National Peace and Unity Bill is indeed in the capable hands of a dependable Metsing emissary.
Its sole purpose is the creation of a prime minister’s commission, which subject the Bill’s title conveniently omits, that will exist for a mere 18 months, to do the work of flushing the existing cases which were initially called “high profile” and “politically motivated” cases, and give victims some money for this affront to justice.
It is to be made up of four persons, viz “(a) Chairperson, with a legal background; (b) Vice Chairperson; (c) one other Commissioner; and (d) prosecuting officer with a legal background who shall lead evidence before the commission”; and supported by a secretariat of personnel seconded from the Ministry of Law and Justice.
For this grand plan Metsing and Rakuoane, along with the ‘Khokanyan’a phiri’ bloc, initially wanted a Truth and Reconciliation Commission (TRC), which the nation resoundingly rejected in the Reforms Dialogue, only for it to re-emerge championed by South African judge Dikgang Moseneke as a Transitional Justice Commission (TJC), draped with TRC description, when the Basotho rejected it yet again in early autumn of this year.
It was then left to the ever-brave, loyal, self-sacrificing Rakuoane to bring it back as a National Peace and Unity Commission, in a Bill that doesn’t have the word “commission” in it. But it is the same thing, and must be rejected for the same reasons as the TRC and the TJC.
As I was completing this opinion piece, I stumbled on a publicly circulating, vicious April 20, 2021, Moseneke letter to the Prime Minister of Lesotho threatening to recommend SADC sanctions if this ill-conceived project doesn’t materialise, despite what he calls long pressure by the government on him to draft its concept note, only for the rulers to snub his efforts.
But in his myopia and hydra-headedness, Justice Moseneke cites an inapplicable SADC August 2018 threat to the ‘Khokanyan’a phiri’ bloc and the Metsing-Lekhooa-Letsoepa axis of exile pretenders who prostituted South African soil as a place of refuge to stall Reforms and extract the likes of Clause 10 concessions, well after the first All Basotho Convention (ABC) regime of 2017 launched the June 2018 Lesotho National Dialogue and Stabilisation Project (LNDSP) covering national dialogues to gather citizen opinions; hence the eventuation of the Reforms for real, and their near-completion as we write.
Now it is he that threatens completion of the Reforms with an impunity commission that has been repeatedly rejected by the Basotho whom he now nakedly addresses with barbaric boorishness in what is supposed to be a diplomatic letter!
He further says government mischievously didn’t make his notorious Clause 10 into law, and didn’t even defend it in court, and now resists his urges to implement this commission of impunity, yet when it suits them they can pass the Ninth Constitutional Amendment (“Kotopo”) in no time.
I have always said this man is a street-level local opposition errand boy! Interestingly, this letter came in as Metsing was losing the Clause 10 Appeal, and the Rakuoane bill follows thereafter.
What is funny is that, Mr Moseneke repeats the falsehood that Reforms will die without this commission being enacted, and that they’ll be completed in one stroke if it is enacted. He further says he is not “bothered or fazed” by the voices of the Basotho in their different constituents who have been objecting in the media to his approach seeing it as contrary to the letter and spirit of the Plenary II Report.
Plenary is unquestionable in its reports that the Basotho shall determine what type of institution they want, and the length and breadth of the field it will cover, and all these processes will be led by the National Reforms Authority (NRA) – all he wants is action now.
But that is all in the law whose promulgation he supposedly shepherded, and he says that law must now kneel at the feet of his emotion because this is not South Africa.
All we can say is, we’re glad we’ve caught the attention of this highflying impostor who poses as a helper while harbouring long-exposed pretentions and illusions of the Emperor of Lesotho, after failing to reach the heights of his peers in his own turf at home, nor achieving the miracles which he promises us by this naked onslaught on the pillars of our national rule of law and democratic order.
But indeed Mr Moseneke and the government can’t engage the national dialogue they have triggered, as long as they travel under a tent of lies to bolster their cursed project.
In introducing the Bill, the text makes no effort whatsoever to claim that there is substantial absence of peace and national unity in Lesotho, and what the signs are. Without that, there is no reason for the Bill.
But because last time Moseneke and the government tried to cobble untruths borrowed from other parts of the world or other remote parts of Lesotho’s history like the early 1970s or 1990s, and thereby failed to justify their case for this type of commission, they have told themselves they won’t bother explaining it anymore.
Yet in a democracy, if you cannot explain it to the nation in whose name you want to do it, you shouldn’t do it. In its own words, the Bill roughly says it seeks to enable victims and perpetrators of political violence to heal and reconcile through truth telling, in a process overseen by the commission to which they will simply apply for appearance, and which upon determining the truth shall have power to award damages or compensation to victims and to pardon perpetrators.
Where the commission accepts the application of anybody who is under investigation or facing charges or in custody, it will prescribe appropriate measures to the court and custodians in consultation with the correctional services minister, for such a case to be suspended forthwith.
The accused may go back to face the charges if s/he fails to convince the commission that s/he had spoken the whole truth. What is deliberately omitted, but is clearly intended here, is explicit stipulation of release of incarcerated persons on the instruction of the commission, without any engagement with, except prescription to, courts and prison authorities.
Earthmoving powers indeed, for a very rickety, quick-fix body for that matter!
No prize for guessing whom this is seeking to help, in very specific terms – the rogue soldiers whom Mr Moseneke calls high profile cases, and whose continued incarceration and/or indictment he threatens will topple the government, using the sacrosanct SADC letterheads in these incendiary locutions.
Out of 13 clauses on Application to Appear before the commission, nine are elaborately dedicated to newly charged or imprisoned perpetrators; and in the remaining three where victims appear, they’re not even addressed on procedure to apply, save to say they will detail out the suffering they sustained, which the commission will have to affirm in order to determine compensation.
In determining amnesty for the perpetrator, the commission is given to consider truthfulness of perpetrator story, whether the manner of perpetration was “not grossly inhumane”, and remorsefulness of the perpetrator and promise not to relapse into same conduct.
There’s absolutely no consideration of the victims here, who are, on the contrary, supposed to convincingly make a compelling own case for compensation.
So the pardon is now the prerogative of the commission, no longer determined by a transparent justice system or subject to the conviction of the victims or their next of kin.
In a restorative justice system that ordinarily displaces the traditional or mainstream court system only on the basis of victims’ consent, their voice matters since they’re the ones whose case as the wronged party was supposed to be carried by the state.
The issue that brought us to this conjuncture in our contemporary political history was a craving for justice and restoration of the rule of law, and nowhere is this law about this. It’s about peace and reconciliation at the expense of justice.
Who says relatives and victims want to exchange their right to life for the hazy notions of national peace and reconciliation?
If they’re so prodded to choose a trade-off, or a mix of these, let it be their choice in an open dialogue, not this force-feeding of the thing to them. Indeed, this is all that they have been asking till now.
It is also noteworthy that those advocating for this farce had demonstrably denied justice for the victims of their acts until they were charged. Would it be said that they are genuinely seeking justice as part of reconciliation and national unity?
Despite its pretensions, this commission cannot usurp the powers of the courts when it is not constitutionally constituted as a court. Even courts don’t snatch cases from one another’s mouth or hands. It pretends to bullishly push aside the established courts in the name of restorative justice, while avoiding to explicitly invoke that principle.
It cannot say that name because restorative justice principles require that from the onset even its establishment must have victims aboard, and that it must be bound to take them aboard in its decisions.
Now it’s neither a proper court nor a proper restorative justice commission, but a nude highway robbery of national justice and victims’ dignity; and for that it must be condemned in the strongest of terms.
I still have to understand by which convention the courts will simply have to oblige when they’re told they no longer have jurisdiction over the grave cases already ongoing before them simply because it doesn’t please the honourable minister of law and justice that they retain and exercise such jurisdiction.
This of course ties in well with the failure to explain the existence of war and instability and national disunity that make this law necessary; beyond the emotional consideration that people who think they have power to challenge the rule of law and the national constitutional order think their friends are on the wrong side of the justice equation, and they can just switch their sites on the board like they’d do pawns.
This bill claims to target acts of gross human rights violations and political offences. After defining the former, for which perpetrators will qualify for the commission’s consideration of their cases, the drafters realise that there’s nothing special here about the intended friends, so they can’t be singled out until you add political motive.
But then these people never had any political motive, we all know. So the drafters proceed to define “political offence” in a way that makes it completely meaningless, so that anybody can call his or her act a political act.
Just hear this: “Political offences’ means an offence involving overt acts or omissions which prejudice the interests of the state or the political system; and deserving a special consideration as a result of its political motivation”.
In the end, this is left to the commissioners who will be politically appointed for the job; and for such a gigantic job the commissioners are appointed by the prime minister on the advice of a panel assembled by the minister.
To ease the opening of that Pandora box, guess who will determine who should appear before the commission? Anybody “who wants to tell the truth about a gross human right violation and political offences” can apply to come forward.
That is where it becomes a rescue package for prepackaged criminals, which will encourage their recycling and further assassinations and other crimes, the known weapon used by politicians to get rid of their rivals and giving their errand runners in state security establishment a black cheque, claiming that they were motivated by political considerations.
That is why such definitions of terms, and qualifications of persons, cannot be drafted by any one section of subjective, emotional participants and cheerleaders of the tragedies we’re talking about here, but must be a consensus of the entirety of national sociopolitical spectrum.
Government is thus being fraudulent in pretending its highly suspect voice is that consensus here, or at the least giving itself that head start when these categories ought to be collectively decided in a national dialogue process.
Let me repeat for simplicity: what political offence is, and who will be covered by that commission, cannot and should not be decided by the Government or by reference to a parliamentary portfolio committee.
They must be national dialogue consensus. Let me now say what I think a politically motivated crime is: an unlawful act done in clear or apparent pursuit or assistance or furtherance of the goals and objectives of a well-known, publicly embraced and canvassed campaign of destabilising the functions of government or its support by the populace, with a goal of replacing it or making it change its course in relation to its stated policies or actions.
It is clear that at the point in time of your alleged actions you must have been furthering a publicly known agenda which had a following, even if some of its activities were clandestine.
It is clear that if you were a state agent or bearer of state power, your victims must have been pursuing these objectives. But Messrs Kamoli, Metsing, etc, would fail this objective test, hence the bill would rather leave it to political appointees to “convince themselves” whether each act is political on minute by minute case, or simply remember what they’re here for, to free their masters.
This proposal has its innermost threads bare here, in that it doesn’t even say which parts of our 55-year history of independence it covers and why, save only to subtly suggest people facing charges or behind bars shall be freed merely by applying to it and being told they’ll be heard, not even be freed to make representations at given times. They might not even end up being heard anyway.
Mind you, these people have not been granted bail given all the grave implications considered, yet by one stroke of ink on paper the courts shall kneel at the altar of the commission and abide to let them go.
I won’t speak right now to the nuances of the potential ineptitude of the commission as currently constituted, and the sheer barrenness of provisions for its funding, procedures, and reporting – for that should come when we discuss a nationally driven business, not this irritating nonsense of a windbag.
In neighbouring South Africa for example, and I have said this twice before, they had a whole regiment of TRC committees of high level professionals dealing with matters including reparations and amnesty, working over a very long time under trying deadlines and workloads, and here you’re told four potential stooges handpicked my minister and prime minister will promptly determine all that effectively, efficiently and equitably!
That’s why I’ve said repeatedly that the people pushing this thing aren’t interested in the sociopolitical function of this institution, but only in freeing their locked up mates to continue with the crusade of state looting and carnage.
And from what we’ve seen whenever they make a comeback after a forced hiatus, in Sesotho, “khomo li fula li sa tloha motseng”, they start the first day!
Let’s brace ourselves for another round of Mr Sekhamane proverbial bloodbath, with a little help from one of his most trusted lieutenants, yes; but truly with our consent or acquiescence; if we let this come to pass.