The spectra of ‘TRC’ haunts Lesotho
NTHAKENG PHEELO SELINYANE
The people who have been using security forces to hound and even murder opponents of their looting of our treasury, culminating with the murder of two army commanders in two years, have been calling for a Truth and Reconciliation Commission (TRC) to get their imprisoned executioners out of prison and avoid joining them there themselves.
They might just get it, after the government agreed to a proposal by the SADC Facilitation Team led by South Africa’s retired Deputy Chief Justice Dikgang Moseneke to establish it under a different name of a Transitional Justice Commission.
This will be a second time South Africa makes a “strategic move” to negatively affect or decide the fate of Lesotho by imposing an institutional impediment to the express wishes of the affected people at a critical juncture; as it did in October 1998 after its military raid to save the questionable Lesotho Congress Democracy government, planting its flag at the royal palace and killing at least 16 Lesotho soldiers in their sleep far from the theatre of conflict in the Lesotho Highlands Water Project’s Katse Dam, its strategic interest.
Back then, these parties that questioned the election results wanted a unity government as a transitional measure to prepare for fresh elections.
Instead, even before the two sides sat down to talks, and without presenting a report of an enquiry into the elections, in a statement to South Africans on his national television, deputy president Thabo Mbeki announced that the parties had agreed on a 15 to 18 months transition while the government South Africa had saved from “a coup” remained in place!
The Interim Political Authority (IPA) that was put in place instead of a unity government was dragged through a 42-month transition (more than twice the originally prescribed maximum period) while the LCD government changed its resolutions as it wished, to suit its interests, instituted a vengeful commission of enquiry into the protests that preceded the military raid; and arrested activists, in the name of doing away with impunity.
As these happened, South Africa happily looked away, while the LCD brandished the sword of sovereignty of the country to keep away external criticism, and invoked the “principle” of non- interference in other countries’ internal affairs.
The excesses, and indeed evils, that the two LCD regimes of 2002 to 2012 visited on our people are now too well known. For brevity, let’s say as the circle of looting was expanded to take in professional and media critics and industry players and political opportunists from all over the place, this depressed upright citizens’ morale and emboldened the looters who privatised the state to the degree of apportioning its estate to themselves and their friends.
But the unruliness of its internal ranks led to the rupture of this mammoth, with multiple splits that opened up real prospects for political renaissance; and returned masses of otherwise despondent but morally upright citizens not only to seek voting in national elections, but also to convert to change-seeking activism.
The resort of the last LCD regime (2007-12) to a combination of economic sanctions against newspapers and radio stations, and independent contractors and professionals, starving of state colleges, and their collective vilification on state media and political rallies, as well as setting the military on their frontliners – led to formation of a of a six-sector coalition of activism against the state, which led to the dawn of coalition governments from 2012.
The abdication of the state prerogative to the military fed into the natural ambitions of a section of its top command, who rapidly promoted the pliant rogue elements to their coat tails, turning the institution into a mafioso establishment with the rulers paying protection fee; and leading to the incidents that trigged the Phumaphi Commission where SADC demanded prosecution of the army criminals whom former Deputy Prime Minister Mothetjoa Metsing later said he would do everything to return to power to protect because they returned him to power (in 2015), and has since been saying they are politically targeted and their fate should instead be decided through a TRC.
This proposition of a TRC was repeatedly rejected at the national dialogue by the people’s representatives. Mothetjoa Metsing, along with his former general secretary and the then communications minister Selibe Mochoboroane who now leads the Movement for Economic Change are also facing charges along with some imprisoned soldiers for a 2014 coup attempt.
Let us just pause here and say, this is the agenda that the All Basotho Convention (ABC) was overwhelmingly voted back into power (as a leading coalition party) to put an end to in 2017; and it is that mission which the SADC decisions sought from the Lesotho state after the Phumaphi Commission, and it is that for which Justice Moseneke is a facilitator.
So the proposition by Justice Moseneke, and its embrace by the government, for the formation of a Transitional Justice Commission (JTC) whose starting point is the stoppage of prosecutions for the excesses unearthed by the Phumaphi Commission, is a betrayal of both SADC and the Basotho by the alliance of Justice Moseneke and the ABC-led government.
Now, we have been told that this is implementation of the people’s voices I have been referring to, as contained in the Security Sector Reforms chapter of the Multistakeholder National Dialogue (MSND) Plenary II final report. Yes, the Transitional Justice Commission is there, and the TRC was rejected, yet in the same section there’s also an error of referring to the TJC as the TRC.
But we know that since both Plenary I and Plenary II of the MSND vehemently rejected this TRC idea, these are not the same thing. Significantly, this TJC appears specifically under security reforms, not as an overarching and all-encompassing resolution.
It is the responsibility of the National Reforms Authority (NRA) to implement all the resolutions of the nation as contained in the final report, and the NRA has since divided its members into thematic task groups for each sector of reforms, including one on the security sector.
To use the language of the courts, why now does Justice Moseneke, in cahoots with the government, suddenly descend into the arena, and snatch this work from the NRA, and draft its proposal in a way that makes it the TRC which the Basotho rejected?
What is this alliance’s special interest here? To free criminals, and form with them new alliances of happy-ever-after masters of Lesotho, over the blood of people who in some cases laid down their lives so much that subsequently we could elect these rulers, with a promise of delivering justice to those who would dispatch our heroes to eternity with impunity? If they don’t want this motive being attributed to them, then let them not write the things they’re writing about their intentions with this commission.
In all earnest, the freeing of the suspects of the Phumaphi Commission and their political handlers, and glory for their foreign helpers like Justice Moseneke and his team is the only thing that can realistically be achieved by this gambit.
Perhaps it is time for the ABC captaincy of this government, who are the net political losers here, to invoke the selfsame principle of sovereignty and non-interference, and tell Justice Moseneke that the MSND final report says the NRA, not himself and government, will do the Reforms.
And it says the Basotho will decide what the TJC will be like, not that foreigners will script it for them as they’re doing. These are the same authors of the notorious, shamefully glory-seeking Clause 10 which left us at one another’s throats while they basked in the temporary triumph of “cobbling peace in Lesotho”, and which has since been invalidated by the highest court of our land.
Now they are back in the act, shackling and derailing the already challenged Reforms by mischievously extracting and distorting one of its peripheral contents, and declaring it a pillar aspect that deserves handling only their holy hands and not the dirty paws of the NRA which is the vehicle chosen by the Basotho.
The reason why Justice Moseneke’s initiative won’t do anything other than achieve his top priority of releasing criminal suspects from prison and the charges, is because the commission he is envisaging, with a long train of sub-units involving teams of experts and absorbing the attention of the entire nation in literally all walks of life and professions, is a mammoth undertaking bigger than even these Reforms.
So to do it we would have to abandon the Reforms. Nobody is going to say they want to focus on the Reforms and be passed by an opportunity to nail their tormentors or crack some exit from being held accountable for their misdeeds.
If we so agree, and we agree that we are not going to abandon the Reforms, then it means we are not going to do that commission now, except only to make the law for it, which Justice Moseneke says has to be preceded by a law to suspend prosecutions. In sum, this initiative is intended to free criminals.
What gives this proposal even more suspicious is its false characterisation of the current happenings in Lesotho, in order to make a case for a TRC which is part of a universally known package of transitions to peace, where nothing like a TJC exists but a TRC does.
Because a TJC is nothing existing anywhere, if Basotho wanted it, they would have to shape it their own way and not like the traditional TRC which Justice Moseneke is selling. Instead of leaving them to do that, he writes them a script of a TRC.
We are aware that in his document he also says the Basotho will decide, but he has already written the profile of the TRC as what he says they should think about.
This is in excess of his mandate, in law they say it is ultra vires; we could even say it has an ulterior motive – that of minimally freeing criminals and then as usual having them running amok and running to SADC with that law as an “untouchable” international covenant whenever the national justice system tries to touch them.
Justice Moseneke says we are a post-conflict society, in a transition to peace, with exiles just returned home, where their deeds cannot be prosecuted because that will return us to conflict and abort the transition. Instead we need to seek truth, to compensate those who suffered losses in the conflict, and even pardon some deserving perpetrators of that violence in that.
Our starting point should be to consider no charges for politically motivated crimes and “high profile cases”. But why are politically motivated crimes and high profile cases considered the same thing? I would think any politician, chief executive, vice chancellor, industrialist, artist(e) celebrity is a high profile persona and their cases are therefore by definition high profile but not necessarily political by definition.
We know that in this model the conflict and transition referred to are armed civil war, its casualties and emergence from there to formation of a national administrative authority under commonly agreed frameworks including a new constitution and competitive elections. This is the line we crossed in 1993 after the 1990 National Constituent Assembly and the 1991 National Dialogue Conference; and which South Africa crossed the following year following the CODESA process.
South Africa followed the unity government route despite open competitive elections, and we didn’t. One year after their elections, our second national dialogue resolved the formation of a national reconciliation commission, one year before South Africa’s own TRC, but our rulers who want a TRC today said it was only a recommendation and ignored it.
In 1996 they passed an Amnesty Act that pardoned all acts of politically motivated violence. In 1998 our neighbours rubbished local demands for a unity government.
In our different ways we managed our transitions nearly 30 years ago including different forms of integration of combatants; and formed comparable regiments of oversight institutions. We were both attacked by the virus of corruption.
In the case of South Africa it led to state capture, and is being dealt with by the State Capture Commission of Justice Raymomd Zondo. In our case it led to near total lawlessness and “commercialization” of state violence, and it is being dealt with through prosecution of suspects in politics and the security forces.
It is not a challenge of a transition. We are not emerging from war. It is a mundane challenge of consolidating a democracy. We do not need a post-conflict instrument for it. That one targets a universal malaise of national disunity, not the current challenge of individual criminality.
To get past that, we don’t need a commission for people to come and equivocate and tell us falsehoods of their own invention the whole day like Metsing did at the Phumaphi Commission.
As I have said in various places before, the rogue politicians of the Congress tradition in Lesotho have long mastered the art of abusing South African state mediators to get themselves out of compromising situations they get themselves into in national politics, then showing them a middle finger, and repeating that cycle over and over again.
This time they have gone far too far, dabbling in naked criminality as Metsing inadvertently confessed his part in the same at the Phumaphi Commission; and they have been tirelessly trying to lend a veneer of political morality to their adventures.
It seems they are on the cusp of getting just that, and a clean bill of health in the theatre of rule of law. All it will take is for good men and women to say nothing and do nothing. For now the good old “friends of the people” in the Non-Governmental Organisation sector have adopted a wait-and-see posture, only promising to referee the proceedings.