The Phumaphi Commission Report to Lesotho: South African or SADC Agenda? Personal or Regional Politics?

by M. K. Mahlakeng

There has been ambiguity in the word ‘recommendations’, and it seems the Southern African Development Community (SADC) has also been caught-up in this inexactness. This follows a statement made by SADC during its double troika summit in Gaborone comprising of Botswana, Mozambique, South Africa, Swaziland, Tanzania and Zimbabwe. SADC issued a 14-day ultimatum prescribed by the regional body to Lesotho to “implement the Phumaphi Commission Report or face suspension from the regional body”. The Commission was expected to probe the killing of former Lesotho Army Commander Maaparankoe Mahao among other issues.

The tone and manner of this statement, in essence, seems to signify that recommendations are binding on member states and that failure to implement such recommendations will ultimately lead to the suspension of a specific member state. Two main issues of concern were the reasons surrounding the delay by government to implement the findings of the report, and these include the court case against SADC by Lieutenant-Colonel Tefo Hashatsi, and the security measures that needed to be taken before making the report public.

Lt-Col Hashatsi’s court case, which sites Prime Minister Pakalitha Mosisili, Justice Phumaphi, the SADC Commission of Inquiry and Attorney General Tšokolo Makhethe as its respondents, is two-fold. Firstly it aims to nullify the findings of the Commission on the grounds that the commissioners, in particular Justice Phumaphi, was being biased against him noting that he [Hashatsi] is a suspect in the killing of Mahao. Lt-Col Hashatsi was among several people interviewed during the probe. The LDF officer said, in his court application, that “the commissioners’ line of questioning made him appear a suspect in Lt-Gen Mahao’s killing, which he said violated his constitutional right to be presumed innocent until proven guilty by a competent court”. And because of the alleged bias, Lt-Col Hashatsi wanted the respondents to give reasons why the inquiry should not be declared illegal. Secondly, Lt-Col Hashatsi is challenging the legitimacy of the commission for allegedly violating its terms of reference by hearing evidence in South Africa when it had been established by Lesotho laws. However, the SADC reiterated that “any court decision taken against the Commission of Inquiry is of no legal effect and will not bind SADC and its institutions.”

SADC Headquarters

The second issue, concerned a delay due to government’s desire to be given time to go through the report and, if need be, edit out from the report any parts that threatened the country’s peace and security, before making it public. And also paramount to the delay was government's respect for the courts, arguing never to receive the report until the finalization of Lt-Col Hashatsi’s court case.

South African President and an outgoing Chairperson of the SADC Organ on Politics, Defence and Security Cooperation, Jacob Zuma, on 19 January 2016 during the South African Broadcasting Corporation (SABC)’s Morning Live programme stated that “SADC would unilaterally release the report to the public and push for a complete suspension of Lesotho from the regional body”.

Zuma’s support for Lesotho’s suspension from the regional bloc, and what is viewed as ‘anti-Lesotho remarks’, was met with no surprise. It has been argued that the untimely end of the Thabane-administration and the subsequent sacking of the controversial Guptas, alleged friends of Zuma, in Lesotho serve as ample explanation for Zuma’s harsh stance on Lesotho’s internal politics.

Former Prime Minister Tom Thabane and also alleged close friend of Zuma, appointed the Guptas to be his special advisers, claiming that “these people [the Guptas] are good friends of the ANC and we have good relations with the ANC...I was introduced to them by the ANC president Jacob Zuma and other ANC officials”. However, at the end of the two-and-a-half-years Thabane-led government, the Guptas were fired as special advisers to the Prime Minister’s office and their diplomatic passports revoked.

In reaction to President Zuma’s statements, PM Mosisili claimed that his [Zuma] statement is contradictory. In substantiating his viewpoint, The PM made a comparative scenario of Lesotho’s situation with SADC vis-à-vis that of South Africa with the International Criminal Court (ICC). He reiterated that “this is the same thing that today they [South Africa] are claiming immunity by saying that ICC should hold their horses in this regard (holding SA accountable over the Bashir case), and yet you [Mr Zuma] maintain that it is wrong when we say a regional bloc should hold their horses since we still have a case in court…it is surprising that a bloc [SADC] that believes in democracy and the rule of law can say that courts’ decisions are not binding”.

One ought to ask, are recommendations binding or prescriptive? And, what can force the suspension of a member state from a regional organisation? Firstly, according to the Oxford Dictionary, a recommendation is “an official suggestion about the best thing to do”. They merely act as tools that serve member states to refer to and draw from as desired (with liberty to accept or reject). And secondly, nations get suspended from SADC because of unconstitutional governance (i.e. lack of adherence to the rule of law, negligence on peace and security etc.). However, Lesotho’s position to respect the rule of law by waiting for the case that is currently in court and take necessary steps in tabling the report has left it at the gallows.

It is undoubtedly evident through policy initiatives that South Africa (SA) and SADC are highly committed to regional integration, constitutionalism and stability through peacekeeping diplomatic missions. And these all come down to democracy and the rule of law. However, ignorance by both [SA and SADC] over the proceedings of the courts of Lesotho has marked a fundamental shift of policy against a member state.

And this equally raises the question of their role in the call for the democratization of Swaziland – they have turned a blind-eye to the ban on political parties which has been in place for more than four decades, the prohibition of political protests and the plight of many Swazi dissidents exiled in South Africa and Mozambique. The same applies to their stance regarding politically motivated murder, election rigging and economic pillaging in Zimbabwe.