HASHATSI COURT DIARY: LESOTHO SOLDIER CHALLENGES THE SADC COMMISSION OF INQUIRY

Salc : Staff Writer

On 2 and 3 December 2015, SALC attended a hearing in the Maseru High Court in Hashatsi v the Prime Minister and Others. The case relates to a Commission of Inquiry initiated by the Southern African Development Community (SADC) and promulgated by the Lesotho Prime Minster in terms of the Public Inquiries Act. The Commission was set up in August 2015 to investigate the killing of the former commander of the Lesotho Defence Force (LDF), Brigadier Maaparakoe Mahao, and allegations of a mutiny plot. It is frequently referred to as the “Phumaphi Commission”, named after its chairperson, a Botswana High Court judge, Mpaphi Phumaphi.

The case was brought by Lt Colonel Tefo Hashatsi of the LDF on an urgent basis. Hashatsi has been implicated in the operation leading to Mahao’s killing and was called to testify before the Commission. Hashatsi seeks, amongst others, to have the Commission set aside and to prevent it from making any findings in relation to him. He argues that the Commission is unlawful and has operated in a procedurally flawed and prejudicial manner. The SADC Heads of State have been reported as having decided to postpone the release of the Commission’s report until Hashatsi’ case is decided.

The application cited four respondents, the Prime Minister, the Chairman of the Commission, the Commission itself, and the Attorney General. The Prime Minister and the Attorney General did not enter appearances. The second and third respondents (the Chairman and Commission respectively) did not enter a notice to oppose but belatedly made arguments to the Court contesting its jurisdiction. Mrs Mahao, the wife of the late Brigadier Mahao, successfully sought leave to intervene and opposes the application. The Transformation Resource Centre (TRC), a Lesotho non-governmental organisation, sought leave to make submissions as amicus curiae, a friend of the court. Hashatsi opposed the amicus’ application.

On Wednesday 2 December, the case was heard before Justice Monaphati. The parties agreed to argue the amicus application first, followed by the preliminary arguments and then proceeding to the merits of the case.

Mr Tumisang Mosotho argued on behalf of the TRC that it should be admitted as amicus curiae. He submitted that the case goes beyond the individual interests of the parties involved and raises important public interest issues relating to the rule of law, the stability of the country, and questions of open justice. While the admission of amicus curiae is not provided for in the High Court rules, he argued that this is not required as the institution emanates from Roman law and the High Court has established precedent of admitting amicus when sitting in its ordinary jurisdiction.

Advocate Teele KC, appearing for Hashatsi, argued that his client opposed the amicus application because the TRC, he submitted, had no interest in the case. Advocate Teele submitted that while the TRC is mandated to advance human rights in Lesotho, the case does not concern any human rights issues and that human rights arguments do not assist the Court in deciding on the case.

Following a brief adjournment, the Court decided to admit the TRC as amicus. Monaphati J stated that there can be no doubt that the Commission raises the public interest and issues of the rule of law beyond the interests of the parties to the case. The admission of the TRC would be a valuable technique to assist the Court.

The parties then proceeded to argue the preliminary or technical objections to the case, starting with the second and third respondents (the Commission and its Chairman), represented by Advocate Nthloki KC. Advocate Nthloki argued that Hashatsi’s application should be set aside because the High Court has no jurisdiction over the Commission or its commissioners. This is because it is a SADC organ subject to the SADC Protocol on Immunities and Privileges. The promulgation of the Commission’s terms of reference under the Public Inquiries Act was a mere facilitative measure. The Commission, he argued, is similar to a military intervention by foreign troops at the invitation of a head of state. There are no limitations on its territorial mandate and the Court cannot decide on its conduct.

Advocate Nthloki noted his surprise that the Prime Minister is not before the Court despite that the application seeks prayers against him, particularly so in a case where the Prime Minister, as the person in charge of national security, is being sued by his own soldier.

Advocate Anna Marie De Vos SC (appearing with Advocate Haae Phoofolo KC), representing Mrs Mahao, the fifth respondent, argued that Hashatsi’s application must be set aside on the basis of a number of technical objections. Advocate De Vos argued that the applicant is not entitled to seek the relief to quash the Commission, and he has no personal interest (and therefore no legal standing) to seek as he does for the court to direct that the Commission must not report to SADC. In any case, she submitted, the application is premature as its report has not yet been released: the applicant cannot show any harm from the Commission’s proceedings until it has been finalized. She argued further that the application amounted to an abuse of court process and the applicant had in any case not established any urgency. When asked whether the Court has jurisdiction to determine the matter, Advocate De Vos submitted that the Court must surely have jurisdiction but that the Court will not assume jurisdiction where it can’t enforce its own order, for example in prohibiting the Commission from reporting to SADC.

Advocate Teele, for Hashatsi, argued that because the Commission does not consider itself bound by the Public Inquiries Act, the applicant has no other relief but through the interdicts he seeks. It is clearly the Prime Minister who initiated the Commission and it is subject to domestic law. Advocate Teele argued further that the commissioners do not in any case enjoy immunity under the SADC Protocol as they are not “experts” in terms of the Protocol.

At this point Advocate Teele asked that the Court adjourn until the following morning. When the Court reconvened Thursday morning for further argument, Advocate Teele stated that he wished to further postpone the matter and he could not in any case proceed as he had not brought his files to court. Justice Monaphati stated that he wanted the matter to proceed and that the agreement of the previous day must be fulfilled.

After consultation with the legal representatives in chambers, Justice Monaphati postponed the matter for further hearing until 18 and 19 January 2015. In reaching his decision he stated that the Commission is extremely important in the history of Lesotho and that the judiciary has borne the brunt of the instability in the country. The Court, he said, is experiencing things it has never had to deal with before. There is hope that the Commission can contribute to resolving some of Lesotho’s problems and where there are disputes around the Commission, they must be resolved. In being called on to resolve the present dispute, Monaphati J said he bears “a very heavy weight”. He stated further that in experiencing problems in continuing with the case, the public can hear what is happening, even if things are not spoken in the open as the public can perceive where the problems lie. He stated that he must postpone the case “with a heavy heart”.

SALC noted the presence of observers in Court from the International Commission of Jurists as well as from the Law Society of South Africa. The applicant was uniformed and carried a weapon in Court on the first day of the hearing. He was unarmed on the second day but was accompanied by Colonel Sechele of the LDF who did appear to be armed.