A High Court in Lesotho has granted an interim order for a military general not to appear before a SADC commission after he accused a Botswana Judge investigating the political crisis in that country of bias and impartiality. The interim order comes after Justice Mpaphi Phumaphi, chairman of the commission investigating the death of former Lesotho Defence Force (LDF) Lieutenant-General Maaparankoe Mahao had said if commander of special forces Lieutenant Colonel Tefo Mashatsi refuses to say if he was present when Mahao was shot he is a “suspect.”
Mashatsi had also refused to “respond to hypothesis” when asked if his loyalty to current commander, Lieutenant General Tlali Kamoli would be extended to his successors.
The commission then concluded that Mashatsi is a suspect in the death of the former commander. In an affidavit seen by Business Weekly & Review, Hashatsi singles out Phumaphi, for special mention and said the Botswana judge made him appear the prime suspect in Mahao’s killing. He approached the court on Friday last week seeking interim relief from appearing before the commission again until his application to stop its probe into the death of Mahao, is finalised.
Hashatsi claims the commission was biased against him during his first appearance on 17 September, hence his application to stop the probe. In his application Hashatsi says Phumaphi has taken a “clear stance” against him thereby violating his constitutional right to be presumed innocent until proven guilty by a competent court. He says Justice Phumaphi appears to have already concluded that he was responsible for Lt-Gen Mahao’s murder due to his line of questioning. Because of the alleged bias, Lt-Col Hashatsi wants the respondents—Prime Minister Pakalitha Mosisili, Justice Phumaphi, the SADC commission and Attorney General Tšokolo Makhethe—to give reasons why the inquiry should not be discontinued “for lack of impartiality”.
Mashatsi also requested the court to suspend the probe because some of its members were not “legally commissioned”.
He said: The proceedings should not be reviewed and set aside as having been vitiated by an error of law that they did not have to be conducted according to the Public Inquiries Act except only to the extent of using the provisions for the compulsion of witnesses under that law. The proceedings should not be reviewed and set aside because of the participation of one Mr Waly and everyone else who was not appointed as a commissioner in terms of Legal Notice 75 of 2015.
Lt-Col Hashatsi further wants the court to rule that the commission acted beyond its powers when it conducted hearings in Thaba ‘Nchu, South Africa, from 1-7 October, where exiled opposition leaders and members of the army gave testimonies.
He also wants the court to order the commission to surrender evidence it has since gathered about him, to the Registrar of the High Court. Part of the notice of motion also calls for the respondents to explain, “why evidence and facts relating to him shall not be expunged from the record of the proceedings”.
Lt-Col Hashatsi further wants the respondents to show cause why the commission should not be “restrained and interdicted” from making any findings in relation to him, and also stopped from summoning him again “pending the outcome of this application”. He also states the application was made in his personal capacity and not as an LDF officer.
Granting him an interim order, Lesotho High Court judge, Justice Tšeliso Monaphathi said:
“I agree that prayer 1(l) be granted. It is the prayer that speaks about whether the chairman of the commission and the commission itself shall not be restricted from summoning the applicant pending the finalisation of this application.”
He however did not rule on some of Mashatsi’s requests and said the commission will continue with its normal work except calling the Mashatsi to appear before it until the application has been finalised.