Illegal state surveillance underscores need to expedite Lesotho’s security sector reforms
IF Lesotho’s politicians ever needed a wake-up call to implement long-delayed but much-needed multi-sector reforms, they need to look no further than the current surveillance controversy which has left Prime Minister Sam Matekane and spy boss, Pheello Ralenkoane with eggs on their faces.
Mr Matekane and National Security Service (NSS) Director General Ralenkoane have been on the receiving end of a recent chastising Constitutional Court ruling that outlaws their arbitrary powers to commandeer the national intelligence to spy on opposition politicians and others.
The verdict, handed down by Chief Justice Sakoane Sakoane, prohibits the duo from issuing warrants for the seizure and confiscation of people’s mobile devices as well as copying and retaining information from them in violation of privacy among other rights.
The judgement was delivered in response to a June 2023 application by opposition leader, Machesetsa Mofomobe, and fellow opposition politician, Moeketsi Shale. Messrs Mofomobe and Shale had petitioned the court after intelligence officers, acting in terms of search and seizure warrants issued by Mr Ralenkoane and signed by cabinet minister Limpho Tau on behalf of Mr Matekane, moved to seize their mobile phones. Mr Ralenkoane had claimed the confiscation of the phones would facilitate the NSS’ investigations into the cold-bloodied May 2023 murder of popular radio presenter, Ralikonelo Joki.
Mr Ralenkoane alleged that Messrs Mofomobe and Shale were suspects in Mr Joki’s murder and had also illegally obtained confidential NSS information.
The duo challenged Mr Ralenkoane’s directive to seize their phones in court. Delivering judgement in the consolidated Mofomobe and Shale case on 23 June, Justice Sakoane ruled that Section 26 (2) of the National Security Service Act which the spy boss and the prime minister had relied upon to seize the duo’s phones was unconstitutional as it “lacks the necessary safeguards to provide adequate and effective guarantees against arbitrariness and the risk of abuse” of power by Mr Matekane.
Justice Sakoane said the seizure and extraction of information from Messrs Mofomobe and Shale’s mobile phones violates their rights to privacy and freedom from arbitrary seizure of property.
The top judge also ruled that the NSS had no business usurping the powers of the police to investigate crimes.
Buoyed by the favourable Mofomobe-Shale judgement, NSS officer Pitso subsequently approached the courts over the seizure of her own phones which had occurred earlier in May. She alleges that the NSS had no case against her and only attempted to build one after confiscating her phones and copying information from them. She says she was then accused of leaking confidential NSS information to Mr Mofomobe.
Her court papers offer chilling insights into the modus operandi of the dreaded secretive intelligence agency. She says angry fellow NSS officials accosted her at the spy agency’s headquarters in the capital, Maseru, and threatened her with violence to force her to surrender her personal and work-issued mobile phones.
Rights activists are celebrating the Mofomobe-Shale judgement and expecting a similar verdict in Ms Pitso’s pending application.
If precedence is anything to go by, the Constitutional Court will rule in Ms Pitso’s favour.
In the Mofomobe-Shale case, the court has had to rein in a prime minister and a spy chief seemingly hell-bent on unleashing the full might of the dreaded intelligence on real and perceived opponents. It has had to rule on the longstanding use of government leaders’ powers to invoke patently unconstitutional sections of the National Security Act for ultimately illegal surveillance operations.
But it did not have to come to this. Messrs Mofomobe, Shale and Ms Pitso and anyone else would not need the courts to rescue them if Lesotho had implemented the much-delayed security sector reforms aimed at professionalising the NSS and removing it from under the suffocating armpits of overbearing and self-serving politicians.
Recommended by SADC leaders in 2016, the security sector reforms are part of much wider reforms aimed at achieving lasting peace and stability to allow hoped-for economic development to finally take off in the kingdom.
Seven years have passed since SADC recommended the constitutional, governance, judicial, media and security sector reforms.
By now Lesotho should have reformed security sector and governance institutions.
By now there should be a professional police force, army, prisons and intelligence services free from manipulation by self-seeking politicians.
Each agency should be operating within its mandate and not encroaching on the territory of the other.
But the politicians have shown little if any appetite to implement the reforms.
Despite numerous exhortations, generous financial and logistical support as well as handholding by SADC leaders and international development partners, Lesotho’s politicians have been expending their energies on self-serving political skullduggery while paying lip service to the pressing need for reforms.
And the results are there for all to see: chromic underdevelopment with all its attendant evils of corruption in government, high unemployment, food shortages, poverty, human rights abuses and crime.
Political instability reigns supreme. As the Mofomobe-Shale and Pitso court applications show, security agencies like the NSS are mere toys at the beck and call of politicians. State surveillance can be unleashed on the opposition and anyone else the ruling elite considers a threat to their interests.
A whole NSS boss can claim without any shame that it is necessary for him to seize people’s mobile phones and copy everything in them to facilitate investigations that fall under the purview of the police.
All this is happening because the necessary reforms have not been implemented to ensure a professional security sector where each agency sticks to its mandate and refrains from encroaching into another’s territory. Without reforms and the professionalism they bring to the security sector, the nation will continue relying on piecemeal court judgements which will still be ignored by rogue security agencies as shown by the case of Ms Pitso who still has not had her phones returned to her by the NSS.
In light of these recent revelations concerning illegal state surveillance activities in Lesotho, it is alarmingly clear that Lesotho’s security sector reforms must be expedited without further ado. The illegal invasive actions of the NSS undermine the very principles of democracy, human rights, and citizens’ privacy that Lesotho professes to uphold. It is high time that the pressure was brought to bear on Lesotho’s political players to take comprehensive and meaningful steps toward reforming the security sector to prevent abuse of power and protect the fundamental rights of its citizens.
Herbert Moyo is a journalist researching digital surveillance, with support from the Media Policy and Democracy Project run by the University of Johannesburg’s Department of Communication and Media.