The case of military intervention in Lesotho

The current contradictory media statements by the Prime Minister (PM) of Lesotho, Dr Thomas Thabane, Foreign Affairs Minister Makgothi, Principal Secretary of Defense Colonel Mothae and Southern African Development Community (SADC) Executive Secretary Stagomena Tax, are creating more anxiety for Basotho.

It is not often that we see a regional body and a leadership of a member state appearing to sing from different hymn books.
These differences are creating more apprehension for Basotho since they concern the security of Lesotho and the role of SADC as a regional body mandated to deal with politics, defence and security.
It is these foreign policy challenges that the paper will discuss below.

The request for military intervention On Saturday September 9, 2017, the Prime Minister was interviewed on the way forward regarding the recent senseless killing of the Lesotho Defense Force (LDF) Commander on the BBC by Peter Okocha.

The premier was quoted as saying, “we have sent a delegation to both SADC and the AU headed by our Foreign Minister” to seek military intervention.
It would appear that the Premier had already requested SADC to send its military to Lesotho. According to the PM, these SADC forces from Angola, Mozambique, Tanzania and South Africa were expected to arrive in Lesotho on the 11th or the 12th of September 2017.
He was further quoted as saying, “we want a real shuffle in this organisation (LDF). I know there are good men in there and so we have to isolate the good men from chaff”.

What is even more interesting is that the PM did not only send his foreign minister to the regional body SADC but to the African Union (AU) as well. The interest here is that it is common cause that you cannot bypass the regional body (SADC) and proceed to the continental body (AU). Only a SADC Summit has the mandate to approach the AU not a member state.

On September 13, 2017, the SADC standby force did not arrive in Lesotho as requested by the Prime Minister. On the morning of September 13, the Principal Secretary in the Ministry of Defence and the Minister of Foreign Affairs made diametrically opposing statements with the Prime Minister on Radio Maria Morning Programme.

First the Principal Secretary Colonel Mothae informed the nation that he was not expecting any SADC standby force to arrive in Lesotho. He went further to declare that the current leadership of the LDF was in control and there was nothing that could motivate such intervention.
Mothae was corroborated by the Foreign Affairs Minister Makgothi who said that the Troika would have to deliberate before any SADC force could land in Lesotho.

He went further to state that only after the double Troika meeting to be held on Friday, September 14, 2017 would the nation will be informed about whether there will be military intervention or not.

SADC response to military intervention
In confirming the Lesotho’s Prime Minister’s request, SADC Executive Secretary stergomena Tax, was quoted on BBC’s Georgia Brown programme as saying: “I can confirm that they have requested a stabilising military force, but such decision to send a force is made by the decision-making structures, and that is the Summit …However, with regard to this request, there are a number of issues which have to be looked into; legal requirements, the mandate, budget, operationalization and other logistics”.

In my opinion, Tax is saying the current political environment in Lesotho is not yet conducive for military intervention otherwise why would she come up with such conditions?
The SADC Communique of Friday September 15, 2017, paragraph 7, appears to set these conditionalities saying the Chiefs of Defence and Security were mandated to conduct an assessment first before any determination on the PM’s request regarding the requirements and appropriate size of the contingent force.
The issue of a budget while important and operationalisation of these forces are also critical, I will focus on the SADC mandate and the international legalistic approach to legitimate interventions.

Legalistic
The Charter of the United Nations regulate interventions in other states. After 1945 it was agreed that any justification for military intervention would reside with the United Nations Security Council (UNSC). Therefore, Article 24 of the Charter confers upon it the primary responsibility for the maintenance of international peace and security.

To perform this function Chapter VII of the UN Charter in Article 39 authorises the UNSC to “decide what measures shall be taken in accordance with Article 41 and 42, to maintain international peace and security’.

Chapter VI advocates the settlement of disputes through diplomatic means with the consent of parties involved in conflicts.
Therefore, non-coercive means of conflict resolution were made central in this chapter. The use of force therefore has to be limited to the protection of human rights.

On the other hand, Article 52, which deals with regional arrangements, encouraged regional bodies and other agencies to deal with matters relating to peace and security.
Article 53 further states that “no enforcement or by regional agencies without the authorisation of the Security Council” shall be contemplated.
Nevertheless, the legality of and questions relating to intervention still persist even though prohibitions for unauthorised interventions were outlawed by the UN Charter in Article 2(4).

The rationale for the rule against intervention in domestic affairs is to encourage states to manage their own problems by ensuring that they do not spill over and transform themselves into a major threat to international peace and security.
In June 1998, the UN Secretary-General, Kofi Annan, argued that intervention must be condemned when a strong party intervened in the territory of the weaker state, suggesting that intervention was tantamount to aggression because only the UN has the authority to act in this ‘benign’ capacity, an authority that comes from decisions of the Security Council, whose own authority comes from the Charter of the United Nations.

The UNSC derives its power from the UN Charter which is the legal document that has been codified by member states. Kofi Annan argues that the UN enjoys the right to suspend the principle of the norm of non-intervention in pursuit of humanitarian intervention. This UN mandate derives from the authority of the UNSC.

In like manner, the OAU also clearly defined circumstances within which military intervention could be conducted by African member states.
Under Article II of the OAU Rules of Procedure, African states declared that the OAU would promote the unity and solidarity of African states and coordinate and intensify their cooperation and efforts to achieve a better life for the peoples of Africa, thus promoting international cooperation with due regard to the UN Charter and the Universal Declaration of Human Rights.

By entrenching the above clause in the OAU Charter, member states unequivocally vowed to defend their sovereignty against any intervention whatsoever.  These principles were explicit in purpose and intention, that is, military intervention without sanction of the authorising body was forbidden. In order to reinforce these principles, the OAU passed Article VI under which member states pledged to observe scrupulously the principle enumerated in Article III of the present Charter. The transformation of the OAU into the African Union (AU) embraced the above principles.
In its constitutive act, the AU committed itself to functioning in accordance with the principles set out in Article 4, which were similar to those of the defunct OAU, but were more democratic and more UN-compliant.

Under the principles of Article 4 African states committed themselves to the peaceful settlement of disputes and to the rule of law.

Mandate
In her interview cited above, Tax referred to the SADC mandate which is also in line with Article 4 of the AU. The SADC Organ of Politics, Defense and Security (OPDS) which deals with political challenges in member states, in its preamble emphasises strict respect for each member state’s territorial integrity and sovereignty.

The preamble also advocated respect for good neighbourliness, interdependence, sovereign equality, political independence, non-aggression and non-interference in the internal affairs of member states. The 1996 protocol also articulated the objectives of the Organ, which provided the framework for its operations.  These objectives laid down collective security arrangements. This protocol committed the member states to abide by UN Security Council resolutions in the maintenance of peace and security within the region.

They would work in close co-operation in matters relating to politics, defence and security. They committed themselves to adopt conflict resolution mechanisms rather than direct intervention in the domestic affairs of member states.
The Summit reaffirmed that the SADC Organ constituted an appropriate institutional framework by which SADC countries would coordinate their policies and activities in the areas of politics, defence and security.

The member states agreed to these principles, which would guide the OPDS in its operations. The principles appear as inter-alia, set out in Article 4 of the SADC treaty, which shall be the guiding principles for the SADC Organ on Politics, Defence and Security:

I. Achievement of solidarity, peace and security in the region;
II. Observance of human rights, democracy and the rule of law;
III. Promotion of economic development in the SADC region in order to achieve for all member states, equity, balance and mutual benefit;
IV. Peaceful settlement of disputes by negotiation, mediation and arbitration;
V. Military intervention of whatever nature shall be decided upon only after all possible political remedies have been exhausted in accordance with the charter of the AU and of the United Nations.

The organ was therefore set up to achieve the above principles and objectives. However, as a SADC implementing body the Organ in executing its mandate had to work closely with member states.
It was these above principles that the Executive Secretary referred to when he responded to the request of the Lesotho Prime Minister. That means, for the request to be granted it had to be examined in relations to the above criteria.
The SADC Communique of Friday, September 15, paragraph 7 demonstrated this line of thinking. That is an assessment had to be made first before any determination for intervention could be arrived at.
We should recall that on Monday, September 5, the PM when informing the nation about these senior military officers’ deaths, he said, people should remain calm as all was well at the LDF.
In fact, there is currently no civil war or any type of unrest or collapse of law and order in Lesotho. The question is then, why a request for intervention?

Conclusion
It would appear that SADC sees the solution for the Lesotho crisis as emanating from the reforms — the Constitution, public service, security sector, judiciary and parliamentary reforms. Furthermore, the existing environment appears not as explosive as the one requiring a SADC military intervention of 300 or 400 troops as the Foreign Minister suggested on Radio Maria.

It may be recalled that at the last SADC summit in Johannesburg, the Premier assured the region that everything is under control in Lesotho. He went further to say that Lesotho will soon cease to be a bad boy of SADC. The PM must create harmonious conditions for this nation to discuss reforms in the above five sectors. This does not seem to obtain under the current political situation in Lesotho.

It was for this reason the SADC Executive Secretary reminded him about the legal requirement for the military intervention.
For the SADC mandate, it is also clear that the SADC Summit is the decision-making structure that will make a decision in November 2017 not before then.

Dr Fako Likoti