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23 Nov 2018 00:00
Shaun Abrahams is prosecuting soldiers accused of murdering an army commander in June 2015. (Paul Botes/M&G)
The Lesotho government has invited Shaun Abrahams, the controversial former boss of South Africa’s prosecutions authority, to prosecute eight soldiers accused of murdering Lesotho’s former army commander, Maaparankoe Mahao, in 2015. It is the most politically sensitive case in the country.
Abrahams confirmed his appointment as the prosecutor of Lesotho Defence Force (LDF) officers charged with the brutal shooting of Mahao on a lonely rural road in front of his young nephews.
The move will raise eyebrows in South Africa.
Widely known as “Shaun the Sheep”, Abrahams was criticised for lacking independence while he was South Africa’s national director of public prosecutions between 2015 and 2018.
He drew particular fire for failing to pursue corruption charges against then-president Jacob Zuma and his inaction on the Gupta family, despite mounting evidence of their criminality and undue influence over the state.
Lesotho’s prime minister, Thomas Thabane, enjoyed close links with the Gupta family during his first stint as prime minister, awarding diplomatic passports to Atul Gupta and two Gupta associates as well as appointing Atul Gupta as a special adviser.
In August this year, the South African Constitutional Court nullified Abrahams’s appointment as National Prosecuting Authority head, ruling that Zuma’s removal of his predecessor, Mxolisi Nxasana, in 2015 was an unconstitutional abuse of power and that Abrahams’s subsequent appointment was correspondingly invalid. He quit to resume private practice.
Responding to questions, Abrahams confirmed he was “on brief to represent the crown in the matter of Rex vs Litekanyo Nyakane and seven others, which … relates to the murder of … Maaparankoe Mahao.”
Lesotho has often used foreign prosecutors in high-profile cases because of the poor calibre of lawyers in its state service.
Abrahams said the Constitutional Court judgment left him unemployed. “I’m available to be briefed by anyone who wishes to retain or acquire my services.”
Prosecutorial independence will be of particular importance in the Mahao murder trial, given its political sensitivity.
Lesotho police commissioner Holomo Molibeli has hinted that other, more senior figures are being investigated for the Mahao murder — a possible reference to ministers in the Cabinet of former prime minister Pakalitha Mosisili.
Mahao (47) was appointed Lesotho Defence Force commander on August 29 2014 after then-premier Thomas Thabane fired army commander Tlali Kamoli for insubordination.
Kamoli challenged the dismissal and mounted a coup attempt in August 2014, kick-starting a chain of events that culminated in the snap elections of February 2015 that ushered in Mosisili’s seven-party coalition.
The new administration reinstated Kamoli, arguing that his dismissal and Mahao’s promotion were illegal. A notice in the Government Gazette announced the termination of Mahao’s appointment as LDF commander and demoted him to his former rank of brigadier.
Mahao challenged his demotion in the high court, but the case fell away after he was shot on his way to his farm in Mokema, outside Maseru, in the presence of his two nephews, on June 25 2015. The killers were soldiers.
According to a public statement by the nephews, one a university student and the other a school pupil, and a letter by the family to former United Nations secretary general Ban Ki-moon and African leaders, Mahao’s truck was chased and stopped by three military vehicles.
A group of men with AK-47 rifles, including one in soldier’s uniform, then shot him as he sat in the driver’s seat.
In their statement, which they also made to the police, the nephews alleged that the murderers dragged Mahao’s bleeding body face down across the tarred road and threw him into one of their trucks.
Two vehicles drove off to the military hospital, while the third stayed behind and held the nephews for 40 minutes before releasing them.
The LDF claimed Mahao was alive when he reached the hospital and could walk. The family angrily disputes this, accusing the army of killing him in cold blood.
The military also alleged that Mahao was shot while resisting arrest for leading an army mutiny. A Southern African Development Community (SADC) inquiry rejected this claim.
The SADC commission found Thabane’s appointment of Mahao as army commander was lawful and recommended that the government should investigate the killing and prosecute those responsible.
Mosisili’s government ignored the recommendation. Only after Thabane’s return to power in mid-2017 were the soldiers arrested.
Captain Litekanyo Nyakane, Captain Haleo Makara, Sergeant Lekhooa Moepi, Sergeant Motsamai Fako, Corporal Marasi Moleli, Corporal Motšoane Machai, Corporal Mohlalefi Seitlheko, and Corporal Tšitso Ramoholi appeared in the high court of Lesotho last week. The case was postponed until February next year.
They earlier pleaded not guilty to a charge of murder.
The Mahao family representative, Professor Nqosa Mahao, said the family was satisfied with Abrahams’ appointment, “as it now looks like the case will proceed and there is a sign of commitment by the government with the appointment of a foreign prosecutor”.
But he added: “The mission to assassinate Maaparankoe … was too big to be orchestrated by those eight junior army officers alone. Authorities approved the operation. We want them … to answer before the courts.”
One of the family’s complaints is that Kamoli has not been charged for Mahao’s death.
The former LDF commander is in jail, charged with the murder of police Sub-Inspector Mokheseng Ramahloko during the attempted coup of August 2014.
He also faces 14 counts of attempted murder in connection with the simultaneous bombing of the homes of first lady Maesaiah Thabane and former police commissioner Khothatso Tooana on January 27 2014.
Mahao said the family raised this concern with the acting director of public prosecutions, Hlalefang Motinyane, last week. Repeated attempts to get Motinyane’s comment were unsuccessful.
The Constitutional Court noted that when Jacob Zuma was president he was “desperate” to get rid of then chief prosecutor [Mxolisi] Nxasana “by whatever means he could muster … it was first a stick; then a carrot; a stick once more; and eventually a carrot”.
Zuma had offered “a draft settlement in which the amount was left blank. Mr Nxasana was being told to pick whatever figure” he wanted.
Shaun Abrahams replaced Nxasana in 2015 but, three years later, the Constitutional Court ruled Nxasana’s removal was invalid and thus so was Abrahams’ appointment.
Abrahams denied having any relationship with Zuma before his appointment, adding that all his engagements with the former president were in an official capacity.
He said he had nothing to do with Nxasana’s unlawful removal, “which was unknown to me”.
“The Constitutional Court correctly found that not a single party suggested that I am not a fit and proper person to hold office,” he said. “It is regrettable that some have mischievously and disingenuously attempted to portray otherwise.”
Abrahams said he had served as national director of public prosecutions during the most volatile political period since South Africa attained democracy “and am glad that I was at the helm of this all-important institution at the time”.
Eyebrows were raised because of Abrahams’ elevation to the top job in the National Prosecuting Authority at the age of 39, in preference to more senior prosecutors.
Once in the job, he was criticised for his inertia towards the Gupta family and for failing to take forward the corruption case hanging over Zuma.
He was also seen as doing Zuma’s bidding by announcing the fraud prosecution of then finance minister Pravin Gordhan, who was seen as the main obstacle to the Guptas’ control of the treasury.
After a storm of protest, Abrahams withdrew the charges.
Democratic Alliance leader Mmusi Maimane described Abrahams in Parliament as a “wolf in sheep’s clothing” and the Economic Freedom Fighters asked the Bar Council to disbar him.
Before his appointment as national director of public prosecutions, Abrahams enjoyed a distinguished career as a prosecutor. He successfully prosecuted a number of high-profile African cases, including that of Nigerian rebel leader Henry Okah.
Abrahams told amaBhungane that he had received awards as the best specialist prosecutor of the year and the best prosecutor for crimes affecting the security of South Africa.
“I have in excess of 21 years’ litigation experience and would like to believe that people would acquire my services, inter alia, due to my extensive experience in criminal law,” he said.
He said he was committed to making a difference in Southern Africa, the African continent “and elsewhere internationally, particularly in promoting and upholding the rule of law and constitutional values”, he said.
Lekhetho Ntsukunyane is a member of Lesotho’s MNN Centre for Investigative Journalism. He wrote this article while a fellow at the amaBhungane Centre for Investigative Journalism
The amaBhungane Centre for Investigative Journalism produced this story. Like it? Be an amaB supporter and help us do more. Know more? Send us a tip-off.
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