The Southern African Development Community (SADC) has proposed the establishment of a Transitional Justice Commission (TJC) as part of a "peace and trust-building process" in the multi-sector reforms it initiated in 2016.
The head of the SADC facilitation team to Lesotho, retired former South African Deputy Chief Justice, Dikgang Moseneke, visited the country last week and tabled the proposal for the establishment of the TJC.
Justice Moseneke said the TJC would, among other things, consider the deferment of the high-profile trials of politicians and any other "politically-motivated trials" until after the full implementation of the multi-sector reforms.
Justice Moseneke said an "all-encompassing Transitional Justice Commission (TJC)" would suspend all high-profile cases "to allow the country to face the truth of what happened during the conflict and turmoil as a basis for the healing of the wounds and reconciliation of the nation".
Should the latest SADC recommendation be adopted and implemented, politicians like Mothetjoa Metsing and Selibe Mochoboroane would finally get their longstanding wish to have their trials deferred. Even detained former army commander Lieutenant General (Lt-Gen) Tlali Kamoli could potentially also have some of his numerous trials put on hold.
The two politicians and Lt-Gen Kamoli are among high profile suspects accused of various crimes including murder and treason against the first government of former Prime Minister Thomas Thabane. Lt-Gen Kamoli is also accused of the June 2015 murder of army commander, Lt-Gen Maaparankoe Mahao. They have hitherto launched several unsuccessful court applications to stop the state from prosecuting them.
Justice Moseneke has previously sought the deferment of the politicians' trials but this was rejected by the Constitutional Court on the grounds that Lesotho was a "monarchist sovereignty and whatever law is made by an international institution like SADC could only become (binding) municipal law, if parliament first enacts it into law".
Having a TJC established by an act of parliament is what Justice Moseneke is now hoping to achieve. The retired judge and his facilitation team were in the country from 11 to 13 March 2021. During that time, they met with various stakeholders including Prime Minister Moeketsi Majoro, chiefs, governing and opposition political parties, the National Reforms Authority (NRA) and non-governmental organisations.
During his visit last week, Justice Moseneke said parliament would have to enact the enabling legislation to give effect to the establishment of the proposed TJC.
Such a body would assist in the achievement of a "healing process" and lasting peace and stability.
Justice Moseneke proposed that the TJC be implemented in pre-transitional, transition and post-transitional phases.
"It is recommended that parliament pass as soon practicable substantive legislation on transitional justice that establishes the Transitional Justice Commission (TJC)," Justice Moseneke said. His proposals are contained in a presentation seen by the Lesotho Times this week.
"It is in this (pre-transitional) phase where mechanisms for the returning of exiles or even exchange of the prisoners takes place and parties are called upon to honour the ceasefire agreements and to halt all forms of violence related to the conflict.
"There would also be undertakings or agreements to suspend or defer prosecutions until a specified and agreed event or the completion of the other phases of the transitional justice framework. Therefore, the first phase is meant to build trust and confidence in the transition process and to achieve inclusivity.
"In this first phase, stakeholders must consider and agree on whether to defer or leave for later all cases which are perceived as politically motivated or those which are commonly referred to as "high profile" prosecutions. This is important because premature prosecutions will frustrate the purpose of transitional justice such as full and frank disclosure, reparations and possible forgiveness and amnesty.
"Usually, prompt legislation by Parliament before the onset of the transitional phase is required to give legal validity to the postponement or deferral of prosecutions of alleged crime which fall within the category of politically motivated crimes or high-profile prosecutions. Thus, the deferral of prosecutions would be authorised by valid law," Justice Moseneke said.
He said SADC envisaged that the TJC would be constituted by eminent Lesotho citizens drawn from various disciplines, with skills and expertise.
He said the buy-in from other non-political stakeholders was also important for the success of the envisaged TJC.
"The principle of establishing a broad transitional justice framework must gather legitimacy from stakeholders wider than political parties in parliament. To that end it may be prudent to convene an attenuated leaders' forum for discussion and endorsement of the principle. Given the Covid-19 pandemic, this gathering must be representative but small and of limited duration.
"If the principle is supported, steps should be taken to ascertain the modalities around promptly convening parliament and passing the proposed initial legislation recommended for the pre-transitional phase.
"The government of Lesotho and other stakeholders must also devise a comprehensive communication plan that seeks to inform Basotho of the progression of the national reforms process as well as of the implementation of the transitional justice framework," Justice Moseneke said.
This is not the first time there has been a push for the establishment of a truth and reconciliation body as well as calls for the deferment of the high-profile trials until after the implementation of the reforms.
The opposition has consistently made such demands with support from SADC.
Three years ago, the opposition which at the time included current Deputy Prime Minister Mathibeli Mokhothu's Democratic Congress (DC), held out against participating in the reforms process to force the then Thomas Thabane administration to agree to the establishment of a truth and reconciliation commission (TRC) which would among other things free all politicians, serving and former members of the security agencies accused of various crimes.
Under SADC mediation, the Thabane administration eventually agreed with the opposition to defer all trials of politicians until after the implementation of the reforms.
Clause 10 of the SADC-brokered October 2018 government-opposition agreement specifically stated that "Mr Metsing and similarly placed persons in exile will not be subjected to any pending criminal proceedings during the dialogue and reforms process".
This paved the way for Mr Metsing and some other opposition politicians' return from exile to participate in the reforms process. However, clause 10 was invalidated in November 2018 by the Constitutional Court bench comprising of then Acting Chief Justice 'Maseforo Mahase, Justices Molefi Makara and Semapo Peete (now retired).
This after the late Police Constable (PC) Mokalekale Khetheng's father, Thabo Khetheng, petitioned the court to declare it unconstitutional saying self-serving agreements between politicians could not outstrip the constitution.
PC Khetheng was allegedly murdered by fellow police officers on 26 March 2016 at the height of infractions by security agencies.
Mr Khetheng's successful 2018 court challenge cleared the way for Messrs Metsing and Mochoboroane to be charged with treason in connection with the 30 August 2014 attempted coup against the first government of Mr Thabane.
The duo is supposed to be charged alongside Lt-Gen Kamoli and an army officer, Captain Litekanyo Nyakane.
But their trial was put on hold on 25 February 2020 after Messrs Metsing and Mochoboroane petitioned the Constitutional Court to rescind its November 2018 judgement nullifying clause 10.
Their application was again heard by Justices Mahase, Peete and Makara who upheld their November 2018 invalidating clause 10 and clearing the way for them to be prosecuted.
This despite a spirited push by SADC and Justice Moseneke in particular to stop the trials.
Justice Moseneke had on 29 March 2020 penned a letter to then Prime Minister Thabane, saying SADC was against the plans to prosecute Messrs Metsing and Mochoboroane.
In obiter dicta (incidental) statements while dealing with the application by Messrs Metsing and Mochoboroane to stop their trials, the Constitutional Court bench had said Lesotho was a sovereign country and any proposal by SADC could only become binding if it was first domesticated into law through an act of parliament.
The latest plans to establish the TJC have also been opposed by some of the families of the victims which have previously challenged the SADC plans to stop the high-profile trials.
This week, Mabula Khetheng, the younger brother to the slain Police Constable (PC) Mokalekale Khetheng, said his family was totally against the proposed suspension of the high-profile cases, saying this would deny his family justice for its son.
"We don't agree with the proposed TJC because we believe in the rule of law principle that every suspect must face the wrath of the law regardless of their public standing.
"As a country, we should not allow ourselves to squash cases by introducing mechanisms such as a truth and reconciliation commission. As a family we strongly believe that sustainable peace and stability can only be achieved when every suspect appears in court to answer for their charges.
"If the court convicts such individual or exonerate them, so be it. As a family we love and support processes that will lead to sustained peace but only if those processes do not meddle with criminal cases. All suspects must have their day in court. Getting suspects off the hook by releasing them from prison and cancelling their cases would be a mistake. Cases must not be dissolved in the name of peace," Mr Khetheng said.
The Mahao family said it was yet to convene to decide on its response to the proposed TJC.
"The challenge is that we have not sat down to formulate a stand on the matter. I have not gone through the document. At the moment I am not yet in position to give an opinion on the matter, least I misrepresent my family," a family representative, Lehloenya Mahao, told this publication.
The slain Lt-Gen Mahao's older brother, Professor Nqosa Mahao, is Justice and Law Minister in the current Moeketsi Majoro-led governing coalition. He has previously voiced his opposition to the freeing of high-profile suspects. He has however, said despite his personal views on it, he will not oppose the move if government and other stakeholders agreed to it.