Politicians who clamoured for a truth and reconciliation (TRC) kind of commission as a way of avoiding trial for their alleged human rights violations might as well as get their way.
Opposition Lesotho Congress for Democracy (LCD) leader Mothetjoa Metsing, Deputy Prime Minister Mathibeli Mokhothu's now governing Democratic Congress (DC) and Development Planning Minister Selibe Mochoboroane's Movement for Economic Change (MEC) were the first to demand the establishment of a truth and reconciliation commission to pardon politicians, security forces and other high-profile individuals accused of human rights violations.
The agenda is now being aggressively pushed by the head of the SADC facilitation team, retired South African Deputy Chief Justice Moseneke. His threats of unspecified measures against the Moeketsi Majoro administration over its failure to ensure the speedy implementation of the multi-sector reforms by among other things, setting a commission to pardon politicians like Mr Metsing to enable them to participate in the reforms process, has pushed the government to craft a bill for the setting up of the National Peace and Unity Commission.
The Commission will consider pardoning Mr Metsing, current Development Planning and MEC leader Selibe Mochoboroane and other politicians.
It will also consider pardoning serving and former members of the security agencies like former army commander Lieutenant General Tlali Kamoli who stands accused of treason alongside Messrs Metsing and Mochoboroane.
While Justice Moseneke is currently grabbing the headlines for his quest to have the high-profile suspects pardoned, the push towards the blanket amnesty was started by Messrs Metsing and others who were part of the Pakalitha Mosisili-led former seven parties government which ruled the country from 2015 until it lost the 3 June 2017 elections which followed a March 2017 no confidence vote against Mr Mosisili. Mr Metsing was deputy prime minister in that government.
Sensing defeat in the 2017 elections and fully aware of the 2016 recommendations by the Justice Mphaphi Phumaphi-led SADC Commission of Inquiry for the prosecution of all those involved in human rights violations, Mr Metsing and others who were part of the Mosisili regime began to actively push for the TRC and a government of national unity (GNU).
Opposition's 2018 demands to SADC
In 2018, they repeated the demands to SADC leaders and then then Thomas Thabane administration as a precondition for their participation in the processes towards the implementation of constitutional, security sector, media and judicial reforms which were recommended by SADC in 2016.
They also pleaded with SADC to force the government to release Lt-Gen Kamoli and other politicians and members of the security forces who had been placed in remand prison ahead of their trials for several alleged cases of human rights violations.
In their demands submitted to SADC heads of state in March 2018, the then opposition which included the DC, MEC and current acting Justice and Law Minister Lekhetho Rakuoane's Popular Front for Democracy (PFD), described Lt-Gen Kamoli as a "political prisoner".
At the time, the Thabane-led government rejected what it said were outrageous demands for the TRC and a GNU by the opposition.
The then government's spokesperson, Thesele Maseribane, said at the time that releasing criminal suspects and dropping charges against politicians smacked of interference with an independent judiciary.
He said the government had no intention of interfering with criminal proceedings as doing so would also be contrary to the recommendations of the SADC Commission of Inquiry of 2016 which clearly stated that all suspects implicated in crimes, including the assassination of Lt-Gen Maaparankoe Mahao, should be prosecuted.
"It must be clear that in keeping with the separation of powers, the government will not dictate to the justice or law enforcement agents on how to discharge their duties," Chief Maseribane said at the time.
"The government has never and will never interfere with the justice system. We will continue to implement the provisions of the constitution. The laws of Lesotho are still standing and no person is above the law. If suspects have appeared in court and were charged, then for us as the government it means the courts assessed the cases and saw there was need for a process that would ascertain the veracity of the allegations and the evidence that will be presented in court. Ours is to wait for them to do their work and ensure justice for the victims and their families," Chief Maseribane said.
He said there was need for healing after the turmoil the country had gone through in its recent history, adding that ensuring justice was served would contribute significantly to the healing process.
He however, said a truth and reconciliation commission was not necessarily related to the healing process or the implementation of the reforms. If necessary, it would be addressed at a later stage, he said.
"We would therefore like the justice to take its course and for the reforms to be successful as a critical step towards ensuring long-term peace and stability.
"A truth and reconciliation commission is not related to the justice we are talking about and also not part of the reforms process. It is a different subject that demands different mechanisms which will be addressed separately at another stage if it becomes necessary.
"The country went through a bad patch with profound effects. Lives were lost, people were permanently injured and others still cannot sleep because of trauma and families were devastated. We need to allow time to be ripe for a truth and reconciliation process because the people who were directly affected have a lot of say in the process," Chief Maseribane said.
He also said the government would not be held to ransom by unreasonable demands. The government would equally not backtrack on the reforms. If it becomes necessary, the government would work with a "coalition of willing parties" to ensure there was progress, he said.
Nevertheless, Mr Metsing, who had fled into exile in 2017, alleging threats to his life, continued to call for a TRC and GNU as the best way of bringing peace and stability to Lesotho.
Justice Moseneke joins push to stop high profile trials
Mr Metsing and other then opposition leaders' TRC demands received a boost after the June 2018 appointment of Justice Moseneke as head of the SADC facilitation by South Africa's President Cyril Ramaphosa. Mr Ramaphosa made the appointment in his capacity as SADC mediator to Lesotho, a role he assumed in 2014.
Under Justice Moseneke's mediation, the then government and opposition negotiated and agreed a deal to defer criminal trials of Mr Metsing and other high-profile suspects.
Clause 10 of that October 2018 SADC brokered 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).
The 2018 court decision 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 charged alongside Lt-Gen Kamoli and an army officer, Captain Litekanyo Nyakane.
Their trial, which was put on hold on 25 February 2020 after they again petitioned the Constitutional Court to rescind its November 2018 judgement nullifying clause 10, is back on after the court and the Court of Appeal rejected their latest appeals.
However, Justice Moseneke kept up his moves to stop the high-profile trials. On 29 March 2020, he had even written to then Prime Minister Thabane, saying SADC was against the plans to prosecute Messrs Metsing and Mochoboroane.
Moseneke tables TJC proposal
During his March 2021 visit to Lesotho, Justice Moseneke tabled a proposal for the establishment of a Transitional Justice Commission (TJC) as part of a "peace and trust-building process" in the multi-sector reforms.
He 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".
Due to the government's apparent inertia, Justice Moseneke then penned a 19 April 2021 letter to Dr threatening unspecified action against the government over its failure to ensure the speedy implementation of the reforms by among other things, setting a commission to pardon politicians, serving and former members of the security agencies.
The threats appear to have worked like a charm as Adv Rakuoane over the weekend tabled before parliament the bill to set up the National Peace and Unity Commission that could pardon suspects like Messrs Metsing, Mochoboroane and Kamoli.