Tough questions over Mahao’s murder
MASERU – Following his testimony before the Commission of Inquiry on Monday, Colonel Bulane Sechele (BS) received a lot of grilling from Commissioner Charles Tarumbwa (CT) on his submissions.
Chaired by M.P Phumaphi of Botswana, the Commission was assigned by Southern African Development Community (SADC) Double-Troika Summit on July 3 to investigate matters surrounding Brigadier Maaparankoe Mahao’s death.
The following is an abridged version of Colonel Sechele’s responses to the Commissioners’ questions.
CT: I must ask you to explain in your own understanding, what is the correct procedure to appoint a commander of the LDF?
BS: What is obtaining in practice is the outgoing commander presents the names of officers, being either senior officers or members of the general staff he propositions before the minister of defence indicating that among them, one may be considered for such a position.
That is the practice but let’s come here, in the incident where the Prime Minister considers terminating the commission of the commander, deviating from what is obtaining in practice that a commander has to be given a fair hearing before his commission is terminated.
CT: What is your take on the alignment of the LDF Act and the constitution with regards to appointment of commander of the LDF, in particular, the relationship between the Defence Commission in the constitution and Defence Council?
BS: With respect, my Lord, that has been repealed. We no longer have a Defence Commission we only have a Defence Council as founded in terms of LDF Act No 4 of 1996 section 8 thereof.
CT: Who is the LDF commander in chief?
BS: I have traversed the laws governing the LDF but I have not been able to come up with such. I do not know of such a person.
Phumaphi: (Interjects) You have no commander in chief?
BS: Let me explain that, unlike in South Africa where the constitution clearly stipulates the president of that country shall be a commander in chief.
Phumaphi: If Lesotho has to go to war, who gives the order?
BS: It’s a commander of the LDF. We don’t have that clause in our constitution, which people always say, “the King is the commander in chief”.
CT: Let me rephrase my question, we are looking at the minister of defence giving political direction to the commander, and the minister of defence gets political direction from the Prime Minister, so that hierarchical order tells that the most senior person is the PM, do you agree with me?
BS: From that point of view I agree with you.
CT: So what is the military procedure when receiving orders from the higher authority?
BS: We have got a decided case of Sekhobe Letsie and others. That decision was clear that a soldier should not obey unlawful orders. So even if that order may come from the highest authority, if it’s construed to be an unlawful order we must not obey it.
CT: How would you characterise not obeying an order, is it mutinous?
BS: Not obeying an unlawful order is not mutinous. I have been very clear in that regard.
CT: So in your view, was refusal to step down by Lt Gen Kamoli lawful?
BS: With greatest respect, it was lawful pursuant to that decision of the court of appeal of Lesotho – Commander versus Phakiso Mokoena and others (cites a case). The legal notice that has not followed the required procedure is null and void.
CT: Even if you got to the circumstances leading to the demotion of members of the LDF, what procedures as well as reasons hold in the decision- making?
BS: In that regard, the person who is fairly involved in that transaction is the Attorney General and he is the one who may clearly stipulate the procedures but he cannot deviate from what I have already shown. I want to make an example, as I have indicated, if the authority considers that I have to be demoted, the first leg is to give me a hearing to show cause why they may demote me. And then I respond and the authority will provide an answer to my response and then a decision may be taken. That is the procedure that has to be followed and was followed in the deceased’s case.
CT: So you mean Brigadier Mahao’s demotion was justified, right?
BS: It was justified because, first of all, he was given a hearing in line with the decision that you have already stated. Secondly, the authority that advised for his demotion was the rightful authority, being the Prime Minister.
CT: What legal precautions do you take before members of the LDF are identified for arrest are assured of their human rights?
BS: The assurance that we make is that of an operational order. There will be an operational order – a tool that invites for the mission command theory. That order is amplified by the rules of engagement. They are there, it’s that document which guarantees the members that their rights are protected.
CT: Coming to the arrest of the deceased, would it be inappropriate to just arrest him at his home, why did you decide to make it a special operation?
BS: It was never a special operation for the deceased only; all the arrested members of the LDF have been arrested and detained under that operational order, which dictates beginning May 14, the operation started and didn’t start with the deceased. His issue came on June 25 while the operation had started on the 14th of May so there was nothing special about the deceased’s arrest. He was to be arrested like any other member of the LDF; The operation was not mounted solely for the deceased.
CT: Why did you decide to arrest him at that place (Ha Lekete)?
BS: When we look at that operational order, it tells us that there is a Team A which was on surveillance while Team B would come for the arrest. So on that day, it was his day to be arrested. Our Team A managed to locate him at that area and that’s why we had to arrest him at that area.
CT: The vehicles you used in your teams, were they readily identifiable as LDF vehicles, with military numbers?
BS: When we operate, today we may use this type and tomorrow – another type. Indeed, they were identifiable. To the best of my knowledge if I am not wrong, one was having the military identification while others did not and I can provide an explanation to that. (Go ahead given).
In most cases when we deal with issues of arrests of this nature, we use vehicles from the intelligence department so in most cases they don’t bear LDF number plates.
CT: What sort of firearms were used in arresting the deceased?
BS: We were having AK47s and Galil rifles.
CT: So in your view, that amount of force was necessary?
BS: That was necessary. Had the firing not taken place at that time we would have lost one of our operators, something which we would not appreciate.
CT: You are a career soldier as well as a lawyer and obviously knowing the rules of engagement and also know what is considered as excessive force. Please in your view elaborate what is excessive force.
BS: I have given a scenario as to how the shooting ensued. Every shot was fired for a purpose and consider that as having not exceeded limitations, no unnecessary shots were fired there. The firing was not automatic and every shot was fired for a reason.
CT: Let’s go to your earlier testimony where you even used sounds saying it was babam – that’s an automatic weapon.
BS: No it’s a burst and I want to explain that. You can fire a rifle in a rapid position with a burst not in automatic. When you fire a rifle in an automatic it does not go babam! It goes kreeeee! With a burst, that assists to ensure that you fire an aimed shot without being excessive.
CT: What were the rules of engagement?
BS: Page 63 of the document, those are the orders I gave. You only fire against a person opening fire.
CT: So in your view, the deceased had opened fire?
BS: If s/he is committing or is about to commit an act likely to endanger life and there is no way to prevent the danger, it depends always on the circumstances the following are examples of such.
Firing or being about to fire a weapon…If you are to open fire, you fire only aimed-shots and that is why the gentlemen who were with the deceased didn’t get any shot. Fire no more shots than is necessary.
Take all precautions not to injure anyone other than your target and that is exactly what happened in the scenario that I have given.
CT: How was this shooter, approximation?
BS: It was an encirclement. They were not firing from a distance, from here to that camera (2.5 metres).
CT: So in your view, the soldiers who were shooting had cleared off target and were using minimum force?
BS: Very clear, especially because the vehicles which were used were the 4x4s. He could clearly see that the deceased was about to take the life of another operator and that he was able to give a first shot. A very calculated shot, and then when the deceased tried to turn to him, he gave him another shot.
CT: What firearm was the deceased having, was it full magazine and was the safety catch on?
BS: He was having the 9mm pistol. We have not been able to check it but it’s full magazine. Because he was using the same pistol that I am using, I am using clock 19 and it doesn’t have the safety catch. Safety catch is your trigger finger. Once the round is in the chamber, if you are ill-disciplined hard luck.
CT: In other words, when you retrieved the pistol, there was a round in the chamber?
BS: What has happened is, upon falling down there (Mahao when he got out of the vehicle) what was done was taking away the pistol and it is still in that shape as we speak. It has not been disturbed, that’s why we are waiting for the independent forensic personnel to have it so that they can check against those finger prints. It’s having a round in the chamber that was ready to be fired where it’s kept.
CT: If you are saying it requires great discipline not to pull the trigger, here we are and the late didn’t pull the trigger and the round is still in the chamber. It means to me he was exercising extreme restrain not to shoot.
BS: I said the deceased had drawn his pistol and he cocked it. Immediately when he cocked, two shots were fired in the air and immediately when he pointed a pistol he got a shot. He could not fire, that shot at him was for the purpose of stopping him from firing. The deceased was shot when he was on the verge of firing.
CT: Military police normally conduct arrests in militaries, you have military intelligence and you have the legal services, we want to establish the modus operandi in these elements, where were they integrated?
BS: I like it when the honourable commissioner said, “Normally the military police is the one who execute the arrests”. This was not a normal operation because we were dealing with mutineers. A mutiny in the army is not treated under normal circumstances, that’s not how we do it.
In this one, we had the teams taking that operation. We will not disclose how they were composed, either by the names, numbers or the units but they were members of the LDF.