Minister, army boss disagree

Minister, army boss disagree

…As soldier discharged for mutiny demands package…

MASERU – ARMY boss Lieutenant General Mojalefa Letsoela and Defence Minister Tefo Mapesela are at odds over whether a soldier discharged after being convicted for mutiny should be paid his terminal benefits.
Lt Gen Letsoela has not paid ex-Corporal Khoejane Makhele’s gratuity despite Mapesela’s instructions. Makhele was discharged in 1998 after the Court Martial convicted and jailed him for mutiny.
He has been fighting for his gratuity since his release from the Maseru Maximum Security Prison in August 2005. The army remains adamant that he doesn’t deserve a cent because he was convicted for mutiny, the most serious military offence.

In April this year Makhele asked Mapesela to intervene.
On April 20 Mapesela instructed Lt Gen Letsoela, through a savingram, to pay Makhele “within a month upon receipt of this notice”.
In the savingram Mapesela said the Defence Minister’s discretion to pay ex-Corporal Makhele welled from Regulation 46 of the Defence Force (Regular Force) (Other Ranks) of 1998. That regulation stipulates that a soldier discharged or dismissed may be paid “if his pensionable service amounts to 10 or more years but less than 20 years…gratuity as the (Defence) Minister may determine”.

“I have looked at all circumstances surrounding this case. I am of the opinion that he is entitled to gratuity because of his fine conduct before commitment of munity,” Mapesela said.
“It would amount to double punishment because he has already served his conviction.”
But four months later Lt Gen Letsoela is yet to comply with the minister’s instructions.

Last night the army told thepost that the commander has not disobeyed the minister’s directive.
“The correct position is that upon receiving the said Savingram, the Commander LDF responded by giving his advice on the matter through proper channels,” the LDF said.
“At present the Government is still considering the Commander’s recommendation which is to the effect that it may be very unwise to grant ex-Corporal Makhele gratuity since that would be detrimental to command and control of the Defence Force”.

The army said the commander has a legal duty to advise the minister on matters that may be detrimental to proper command and control of the defence force.
“The LDF and the Commander LDF are subject to lawful civilian legal authorities in Lesotho. As such he cannot refuse to take orders of the Minister or the Prime Minister.”
The Commander never refused but advised and the matter is still being considered by the authorities, the army said.
It said the minister’s discretion in this matter is best exercised with the advice and input of the Commander.

“It is important to note that the Minister is advised by the Commander because he cannot, by virtue of his position, be privy to personal matters of individual members of the Defence Force.”
“Where there are issues which may warrant his advice on the matter, as in the case of ex-Corporal Makhele, then in accordance with Section 12 of the Lesotho Defence Force Act of 1996 he is required to render such advice.”
“However, legally speaking, a discretionary power is exercised with consideration of a number of factors such as the circumstances surrounding each case, the nature of the offence and considerations of public policy interest etc.”

Makhele told thepost he started fighting for his gratuity soon after his release but the then Prime Minister Pakalitha Mosisili, who was also the Defence Minister, allegedly refused.
“I saw that it was not going to happen as long as Mosisili was Prime Minister and so I stopped bothering them,” Makhele said.
When Thabane became Prime Minister in 2012 Makhele revived his quest for his gratuity.

Thabane tried to intervene but hit a brick wall when then Commander Lieutenant General Tlali Kamoli refused to pay Makhele.
A January 2019 savingram from the principal secretary of Defence, Moshoeshoe Sehloho, to Deputy Attorney General Tsebang Putsoane shows how Lt Gen Kamoli ignored Thabane’s order.
“The Prime Minister’s instruction was conveyed to the LDF Commander as per Ministry’s Savingram dated 21st January 2013,” said Sehloho, now chairman of the Public Service Commission (PSC).

“Despite the fact that the instruction from the Minister of Defence (Thabane as Prime Minister in 2013) was specifically about payment of gratuity and other related benefits to Ex-Corporal Makhele, the Commander deliberately misdirected himself by addressing the re-instatement of Ex-Corporal Makhele, which was never an issue in the Prime Minister’s instruction.”
Sehloho said Thabane was informed of Lt Gen Kamoli’s response “and he indicated that he would personally pursue the issue with the then Commander of Lesotho Defence Force”.

Makhele said after Thabane’s fall in 2015 and Mosisili returned, he stopped pursuing the matter because he knew the new Prime Minister was not interested.
“I stopped the pursuit because I understood that it was not in his interest,” he said.
“However, I want to emphasise that I doubt that Mosisili wrote the army commander refusing the payment of my gratuity. This is because up to this day the LDF is failing to produce Mosisili’s directive as the then Prime Minister and Minister of Defence.”

Makhele believes the army is discriminating against him because other soldiers convicted of mutiny by the Court Martial received their benefits.
“Some of these soldiers were convicted of serious crimes such as murder, arson, attempted murder and rape,” he said.

The LDF however said “all other co-mutineers who also applied for gratuity were denied the same for the simple reason that military offence of mutiny is the most serious in the military and carries a death penalty”.
It would be highly detrimental to the administration of the military if members convicted of such an offence are paid their gratuities.

It said it would be unfair and discriminatory if Makhele alone is paid among those convicted of mutiny, the army said.
It explained that Makhele’s case “is very distinguishable from that of Private Nchai, Private Mokheseng, Private Moiloa and Private Mochema”.
“His case is distinguishable in that he together with 19 other soldiers were convicted for the offence of Mutiny before a Court Martial and they never appealed their convictions and sentences.”

“On the other hand, in the case of Private Nchai and others the accused were jointly charged and convicted for numerous civil offences such as attempted murder, arson and the like in the Magistrate Court.”
“On appeal, one of the accused persons, Private Bofihla Letuka, appealed against the conviction but the Magistrate’s Court failed to produce the record of the proceedings and the Constitutional Court upheld the appeal on the ground that it was unfair for the Magistrate’s Court to fail to produce the record,” said the army.

Staff Reporter

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