CAN MILITARY INTERVENTION BE A PREREQUISITE FOR CONSTITUTIONAL REFORMS IN LESOTHO?
Dr Fako Johnson Likoti
Following the just ended 37 Summit of SADC from 19th to20th August 2017, speculation is rife that, there will be a military intervention in Lesotho, as a consequence of assisting the government of Lesotho to implement paragraph 19 of the communique which demands a road map and security reforms. While the Communique did not even mention any semblance of military intervention, it would appear that, an interview given by Lesotho Foreign Minister Honourable Lesego Makhothi, had put sparks on this speculations. It must be recalled that SADC is founded on sovereign equality and peaceful resolution of conflicts and brotherhood. It has been alleged that Minister Makhothi in one interview, he said that, “if there will be any form of resistance, SADC will basically be in the clear picture of what is happening so that we don’t implement, after implementation when we hit the impasse then we go back to SADC and say we have a problem; we want SADC to be right there when we start the implementations process”. Whatever the meaning of this allegation, it is clear that, some people are not comfortable with the statement not unless the Minister disassociate himself with it, more so when we recall the unpalatable seeds of the 1998 military intervention in Lesotho. It is therefore important to remind ourselves about how military intervention is conducted in international relations.
The UN Charter
The UN Charter clearly stipulates that military intervention must be authorised by the United Nations Security Council (UNSC). The charter of the United Nations in its provisions, places much emphasis on the importance of social justice and human rights as the foundation for a stable international order. It is important to note that both the UN Charter and the effectiveness of the UN in maintaining peace and security have been criticised. Several countries are known to have violated the UN Charter with impunity. Among these violators were permanent members of the UNSC. This pattern has been copied by African countries as well. While this is so, it is still essential to understand why unauthorised military interventions continue to be a disturbing feature on the African continent.
In the development of the Just War theory, St. Augustine (354-430) argued that “the justness of action could be judged without evaluating the driving intention, so also with the state action of going to war”. St Thomas Aquinas (1224-74), on the other hand, argues that, war must be waged by a competent authority and there must be a just cause for that war, so that those who were invaded must deserve to have been attacked. Therefore, “Just cause for war could be found in self-defence; restoration of peace; assistance of neighbours against attack and, most notably, defence of the poor and the oppressed”. For Suárez, the defence of innocent people, no matter where in the world, would be a just cause. This line of argument anticipated the findings of the International Commission on Intervention and State Sovereignty (ICISS), which identified six criteria for military intervention that conform to the UN Charter and the Security Council Articles. These were: just cause, right authority, right intention, last resort, proportional means and reasonable prospects.
Lessons Learnt from South African (SA) 1998 Intervention in Lesotho
From South African official pronouncements, the intervention in Lesotho was justified in order to stop a military coup in process. In justifying the intervention, SA claimed that it intervened in Lesotho on behalf of SADC after being invited by a legitimate government. The SA intervention in Lesotho has been subjected to many interpretations. The fact that the SA military went to Katse Dam before going to Maseru where there was an Army mutiny unfolding and anarchy in process was a key issue .
In explaining the SA interest in this operation, it is important to focus our attention on the Lesotho Highlands Water Project. In explaining the mandate of operation Boleas, the Acting South African President Mangosuthu Buthelezi argued that their objectives were three pronged, “to secure the Dam, restore order in the security establishment and clear protests from the Royal Palace”. It was very clear where the South African interests were and what motivated their intervention in Lesotho. Water was the primary objective. Even the authorities in Lesotho then, did not claim that the water project was in danger when they invited SA to come and quell the alleged coups d’etat. The history of international relations contains many examples where states have acted unilaterally outside the confines of international law. We must accept that, “according to foreign affairs officials, South Africa sent troops to Lesotho amongst others to defend Katse Dam”. This was the result of indications that some Lesotho troops attempted to bombard the Katse dam after battling SA troops. Therefore, it can be argued that, “South Africa’s intervention into Lesotho was thus driven more by material interests than political and humanitarian imperatives”. We can confidently conclude that the SA intervention was influenced by realism.
SADC Peacekeeping Mission in Lesotho
SADC peacekeeping role has not been clear, as the cases of the DRC and Lesotho have indicated. What weakened the case for intervention in both cases has been the lack of transparency and clarity in relation to when the consensus was reached to intervene. Lack of accountability and transparency in a decision of this magnitude serve only to erode SADC credibility as a regional body. This has raised questions relating to whether these countries have indeed abided by the 1992 SADC Treaty which “calls on its member states to promote peace and security, human rights, democracy, the rule of law and the peaceful settlement of disputes”. The perceived lack of transparency and accountability has left a major hole in understanding of the above peacekeeping operations. These operations also raised questions of procedure, specifically as to whether proper procedures were followed or not. Similarly, issues concerning peaceful settlements of disputes have also been raised by these interventions, though the main question has always been which protocol sanctioned these interventions. The question is, what is currently being contemplated a SADC Peacekeeping Mission or an Extension of an Oversight body which have been agreed to during the above Summit? If that is the case, then, why involve military in this endeavor more especially when SADC is assisting Lesotho. These are very critical questions moreso when the 1998 intervention was highly suspect and questionable.
The UNSC Requirements for Legitimate Interventions
The UNSC requires that, for any intervention to be acceptable internationally and be legitimate in terms of international norms and values as codified under international law, it must be multilateral and have a UNSC mandate. This brings us to the question: who decides and under what circumstances can intervention be declared legitimate or illegitimate? There is consensus among scholars that the UNSC is the only legitimate body that has the power to grant states the mandate to intervene, under the terms of the UN Charter. In 1979 the then-President of Tanzania, Mwalimu Julius Nyerere, ordered his army to remove the tyrannical regime of General Idi Amin of Uganda. Amin’s soldiers had, on several occasions, mounted incursions into Tanzanian territory. Nyerere’s action was launched without the approval of the OAU and without a UNSC mandate. This was also analogous with the 1998 military intervention in Lesotho.
The preamble of the UN Charter explicitly forbids actions such as Nyerere’s and the 1998 Lesotho Intervention. The Charter declares that: We the peoples of the United Nations determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind,…And for these ends, to practice tolerance and live together in peace with one another as good neighbours, and to unite our strength to maintain international peace and security, and to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest, and to employ international machinery for the promotion of the economic and social advancement of all peoples….
In a sense, Nyerere’s intervention was a precursor to Nigeria’s intervention into Sierra Leone in 1998, which ousted a military regime and restored democratic rule. These actions were contrary to the UN Charter, especially Chapter 1, Article 1, which states in subsections 1 and 2 that the primary purposes of the UN are:
1.To maintain international peace and security, and to that end: to take effective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;
2.To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.
The UN Charter, especially Chapter 1, Article 2, argues that the UN and its members, in their pursuit of the principles stated in Article 1, shall act in accordance with Article 2, subsections 3 and 4, among others. These state:
3.All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.
4.All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
Lesotho is not currently at war, neither is it in civil strife nor any type of military anarchy that warrant the above alleged Ministerial statement of policing national reforms by foreign forces. In 1998, Kofi Annan, then Secretary-General of the UN, argued that Article 2.7 of the UN Charter protects national sovereignty from intervention even by the UN itself, as long as proper processes are followed. He asserted that this prohibition was just as relevant today as it was in 1945. He maintained that violation of sovereignty remains violation of global order.
Annan cited Indian intervention that ended civil war in East Pakistan in 1971, Vietnamese intervention in Cambodia in 1978 that ended the genocidal rule of the Khmer Rouge, and the Tanzanian intervention in Uganda in 1979 that overthrew Idi Amin’s dictatorship as examples of interventions about which the international community was divided because action was taken unilaterally. This was notwithstanding the good humanitarian decisions of the intervening countries, aimed at helping refugees in East Pakistan, Cambodia and Uganda. Annan goes further, observing that the international community cannot afford to allow states to become judges of their own course as this would be the same as legitimising illegal interventions. Annan concludes that the international community would prefer: …to see such decisions taken collectively, by an international institution whose authority is generally respected. And surely the only institution competent to assume that role is the Security Council of the United Nations.
As much as reforms are vital for Lesotho and Basotho, we expect restrain and good neighborliness from institutions like SADC. We have reasons to suspect that, this contemplated intervention, will be couched as humanitarian intervention. But we also want to caution that, there is high propensity for the concept of humanitarian intervention to be abused. The major problem concerning the doctrine of humanitarian intervention has been that it is open to violations of the principle of sovereignty. Since the Second World War, states have invoked humanitarian concerns on many occasions where it was far from legitimate. The 1998 intervention in Lesotho is classical example.
The principle of sovereignty is, therefore, inviolable in principle. There are some cases, when the state grossly violates its own citizen’s human rights, when intervention can be justified. A sovereign state that violates its people’s rights also loses its right to sovereignty. The demand for acquiescence of local parties is important to make intervention internationally acceptable. This is because it carries with it the moral obligation to act.
Only the UNSC has the authority to decide that the internal situation in any state is so grave to warrant and justify forceful intervention. For such interventions to merit member states’ interventions and regional bodies’ involvement, they need to have the UNSC authority behind them. These operations must be conducted under express authorising resolutions, such as that which was developed in 1990 to eject Iraq from Kuwait. Unless there is a UNSC resolution which legitimises intervention, it is not recognised as internationally acceptable and therefore humanitarian. Leave Basotho alone, to conduct their own reform agenda. Yes assist where you are asked and only where there is concurrence by all. The alleged speculations of coercing Basotho through gunboat diplomacy to conduct what is in their national interest, lack credence in the democratic Lesotho.