Maseru – 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.
Former South African Deputy Chief Justice Dikgang Moseneke, the head of the SADC facilitation team to Lesotho, tabled the proposal during his visit to Maseru last week.
Among other things, the TJC will explore the deferment of 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 recommendation be adopted and implemented, politicians like Mothetjoa Metsing and Selibe Mochoboroane would finally get their longstanding wish to have their trials deferred. Detained former Army Commander Lieutenant-General Tlali Kamoli could also potentially have some of his numerous trials put on hold.
Metsing, Mochoboroane 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”.
Justice Moseneke is now hoping to have a TJC established by an act of parliament. 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.
Justice Moseneke said parliament would have to enact the enabling legislation to give effect to the establishment of the proposed TJC which would assist Lesotho achieve a “healing process” and lasting peace and stability.
“It is recommended that parliament pass as soon practicable substantive legislation on transitional justice that establishes the Transitional Justice Commission (TJC),” Justice Moseneke said.
“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.
The TJC will be constituted by eminent Lesotho citizens drawn from various disciplines, with skills and expertise.
But the buy-in from other non-political stakeholders was also crucial 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,” he said.
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. This should be aided by 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, he added.
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.