Blanket amnesty

Rapelang Mosae

THE government of Lesotho recently released a statement on its stance on the findings and recommendations of the SADC Commission of Enquiry.

The statement was particularly detailed and brought to light a number of issues including its position on the removal of Lieutenant General Tlali Kamoli as well as a particularly striking stance of a general amnesty for the detained soldiers.

This means the amnesty would apply to the soldiers detained for alleged mutiny as well as all soldiers whom the report made reference to pertaining to the mutiny and the arrests that followed.

Prime Minister Pakalitha Mosisili stated that the amnesty recommendation was particularly attractive and if it was applied to only one side, it would not be fair. He stated that amnesty for the detained soldiers meant pardon for one side of the divide and anguish for the other.

Mosisili said it is the government’s stance that a general amnesty should be declared to all soldiers especially since the apex court in Lesotho had already held that the detained soldiers do have a case to answer, meaning there is a prima facie case against them.

The stance of the government indeed sounds convincing. However it ignores a few integral issues: allegations against the two factions are not of the same magnitude: one is suspected of mutiny which is essentially a disciplinary military offence while the other faces allegations of murder and torture which are violations of national law.

In addition, international law frowns upon torture and murder because they are crimes against humanity.

There are certain forms of amnesties that are inconsistent with international law. The government of Lesotho should therefore look at the amnesty process holistically instead of just the attractive aspect of it.

If applied incorrectly, the amnesty would have the effect of putting a plaster on a gaping wound.

The Preamble to the Rome Statute of the International Criminal Court describes crimes against humanity as “the most serious crimes of concern to the international community as a whole” which “must not go unpunished” and whose “effective prosecution must be ensured”.

According to United Nations office of the High Commissioner for Human Rights in the Rule of law tools for post-conflict states, an amnesty that exempted crimes against humanity from punishment and/or civil remedies would be inconsistent with the states’ obligations under several treaties and customary international law.

It is worth noting that murder and torture are among those crimes against humanity.

An amnesty for torture would violate state parties’ duties under the Convention Against Torture. Lesotho is a party to the Convention Against Torture, as such it is bound by it. Article 4.1 of the Convention Against Torture requires state parties to ensure that all acts of torture are offences under their criminal law and that they are punishable by appropriate penalties.

Against this backdrop one can see that it will be quite a challenge for the government to apply its blanket amnesty without violating its obligations under international law.

If indeed the detained soldiers have been subjected to torture, the government of Lesotho by virtue of being a signatory to the International Covenant on Civil and Political Rights (ICCPR) ought to ensure that they have an effective remedy against perpetrators of those acts.

In 2004 the Human Rights Committee reaffirmed the duty of state parties to ensure that individuals have accessible and effective remedies to vindicate covenant rights. The situation becomes much worse where gross human right violations are carried out by an organ of government.

In the case of Lesotho all acts were allegedly carried out by the army in a government sanctioned operation. Moreover the detentions were also carried with the government’s consent.

This means that the government would also be a party if the detained soldiers were to institute proceedings to rectify the torture they allegedly suffered.

According to the United Nations High Commissioner for Human Rights, the government ought to make reparations to individuals whose covenant rights have been violated.

It is therefore clear that if the allegations for torture are true the government has an obligation to make reparations to individual victims.

The Prime Minister stated that the basis of an amnesty is usually full disclosure. This indicates that the government would adopt the same basis if it was to go the amnesty route.

Indeed this may seem attractive, but a closer examination brings many questions to mind; if the alleged mutiny did indeed occur and if the alleged murder and torture did occur, and both sides admit all this, do we expect the two sides to go back to business as usual?

There is a reason the United Nations does not allow amnesty for crimes against humanity. The reason is simple; those are cruel crimes which cannot go unpunished, if peace and tranquility are to be preserved in society.

The Prime Minister stated that the amnesty recommendation made by Justice Phumaphi was aimed at bringing an end to destructive scramble and create new hope. That was a correct observation.

Amnesty should indeed restore hope. However it cannot achieve this end, if it is applied by violating the rule of law as well as tenets of international law.

Therese Abrahamsen and Hugo Van Der Merwe submit that amnesty should balance the constitutional imperative of amnesty with the moral duty to acknowledge the dignity of survivors; this in turn necessitates a careful handling of the amnesty criteria and process. The dignity of survivors cannot be said to be respected if the perpetrators (who are in fact government agents) admit what they did, and then an amnesty is applied on them by the same government.

The mutineers will feel they were dealt a bad hand and so will their families. This will in turn create a desire for vengeance.

Furthermore the Prime Minister said a general amnesty will pave way to lasting peace and tranquility. However such cannot result from an amnesty that seems to be aimed at protecting a particular group.

What then will stop the alleged mutineers from believing the amnesty was only aimed at protecting their captors?

Amnesty is a tool adopted in post-conflict states to restore the rule of law, as well as to show a state’s affirmation to the rule of law.

However it cannot be applied in all instances. It is for this reason that the government should closely examine this option, because the factors surrounding this matter point to the likelihood of a bloodbath resulting from the application of a general amnesty.