. . . torture has no place in any democracy; it is illegal even in war situations, says Amadei,

Mohalenyane Phakela

THE European Union (EU) ambassador to Lesotho, Paola Amadei, and the Law Society of Lesotho have roundly condemned the police for subjecting civilians to acts of brutality including torture.

Over the weekend, both Ms Amadei and the Law Society president, Tekane Maqakachane, said the torturing of suspects had no place in a democratic dispensation. Ms Amadei said that torture was prohibited in terms of the United Nations’ Universal Declaration of Human Rights which Lesotho was party to. Even in war situations, it was also illegal to torture prisoners of war, Ms Amadei said.

The EU ambassador and the Law Society’s remarks followed last week’s torture of prominent human rights lawyer, Napo Mafaesa, and his client, Liteboho Makhakhe.

Adv Mafaesa was allegedly abducted on Tuesday and severely tortured by members of the police Special Operations Unit (SOU).

He was arrested at Hopolang Building in Maseru and briefly detained at the nearby police headquarters before being moved to Mabote Police Station where he was allegedly tortured.

He was arrested on allegations of concealing a gun belonging to Mr Makhakhe. The gun is said to have been used in the commission of a robbery at an unspecified date in Mafeteng.

Mr Makhakhe was also arrested and tortured at the same Mabote station.

Adv Mafaesa was released on Tuesday night only after another prominent lawyer, Kabelo Letuka, had filed an urgent habeas corpus application for his release.

Adv Neo Komota, who moved the habeus corpus application before Judge Fumane Khabo, said Adv Mafaesa was now out of custody and receiving medical treatment for his injuries in Mafeteng.

She alleged that Adv Letuka was now in hiding as he was allegedly threatened with death by the same police officers who had arrested Adv Mafaesa.

Commenting on this and other rampant acts of police brutality in an interview with the Sunday Express, Ms Amadei said, “The prohibition of torture is one of the most fundamental individual rights protected under the Human Rights Act”.

Section 11 (1) of Lesotho’s Human Rights Act of 1983 states that “no person shall be subjected to torture or to inhuman or degrading punishment or other treatment”.

“This right (freedom from torture) is absolute,” Ms Amadei said.

“It is never justifiable to torture anyone, whatever the circumstances. The police or anyone else cannot use torture to obtain information from suspects. Even the constitution of Lesotho is against it. (Section 8 of the constitution states that “no person shall be subjected to torture or to inhuman or degrading punishment or other treatment”).

“Besides its own laws, Lesotho subscribes to the United Nations’ Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

“There is no justification whatsoever for torturing people. If one obtains a confession through torture, that evidence has no value at all because it would have been obtained through illegal means. I’ve also seen images and videos of brutality by police recruits on civilians. The recruits must shun such behaviour. Their behaviour in public and in private should be exemplary to the public,” Ms Amadei said.

Ms Amadei also called for decisive action against the rogue police officers who had tortured Adv Mafaesa and Mr Makhakhe. She also demanded action against all other officers who had been accused of brutality against civilians in the past.

“It is unfortunate that some officers are involved in brutality, corruption and other crimes. This cannot be tolerated. In fact, the Lesotho 2020 Human Rights Report on highlights police brutality as an issue that has not been resolved and that it needs urgent attention. The government needs to act. The implicated officers must be punished; they cannot continue wearing the uniform while perpetrating brutality. So, there is a need for exemplary measures. The officers must be brought to justice,” Ms Amadei said.

On its part, the Law Society on Thursday released a statement condemning the torture of Adv Mafaesa and of other suspects in police custody.

“The Law Society condemns in the strongest of terms, the brutalisation of suspects and detainees at the hands of law enforcement agencies. This (torture) is an investigative technique which is characteristic of an authoritarian regime and it has no room in the modern democratic dispensation,” the Law Society said in its statement. The Society hinted at legal action over police brutality.

“In the coming days, the Law Society will take appropriate action to address this malady. In principle, law enforcement agencies ought to investigate and gather hard facts and only at the last stage, confront the suspects and arrest them if necessary. As a consequence of the perpetual flouting of the basic principles; suspects and detainees have been at the receiving end of brutal assaults and torture by state operatives leading to self-incriminations, the incrimination of other persons and in most regrettable circumstances, death.

“Lawyers are not immune from investigations and prosecution for criminal offences but the mode of operation by the police should not be to undermine the fundamental principle of lawyer-client privilege which underlines the entire administration of justice.

“The Law Society has engaged the office of the Commissioner of Police regarding the arrest, detention and torture of Adv Mafaesa. The management of the police force have promised to carry out an internal investigation regarding the torture of Adv Mafaesa and to report to the Society within a short period of time,” the Law Society said.

Adv Maqakachane issued a follow-up statement on Friday wherein he blasted the police for incompetence. He said they never had any evidence against Adv Mafaesa and his client hence they resorted to torturing them.

“It is clear that the police did not make investigations before arresting Adv Mafaesa. From the onset, it was wrong to arrest Adv Mafaesa’s client not knowing where the (illegal) gun was. They should have known about the gun’s whereabouts, where and when it was used in the commission of a crime. Only then, could they have made arrests in terms of the Criminal Procedure and Evidence Act. But they used torture. Torture often forces one to falsely implicate himself or others.

“We have a police force that lacks discipline. The police officers are presenting themselves as a trade union and not a disciplined force. Hence there is tension between police management and the Lesotho Police Staff Association (LEPOSA). The management cannot discipline the junior officers because the courts have allowed those officers to litigate when they are being disciplined. One would expect that they would be trained to deal with the public in a disciplined manner. Lack of good behaviour is rooted in the police force and action needs to be taken by all stakeholders to reform the police force,” Adv Maqakachane said.

On his part, police spokesperson, Senior Superintendent Mpiti Mopeli, said although they had not received any complaint from Adv Mafaesa, they were investigating allegations that he had been tortured in police custody.

“Adv Mafaesa was arrested and released,” Senior Supt Mopeli said in an interview with Radio Lesotho. But as for him being tortured, we never received such a report; we only learned of the allegations from them (Law Society). A tortured person has to report to us. The Law Society met with the police management, which indicated that it would investigate the matter.

“As the police force, we strongly believe in the rule of law. Whenever there is a suspicion that the police have mishandled issues, such matters are brought before the courts which often adjudicate over the matters and we always obey the court orders.

As he (Maqakachane) has duly noted, the rogue behaviour by some officers is a great challenge which needs to be tackled by all stakeholders. The police are the responsibility of the nation and when we do wrong and infringe on human rights, it is important that we address the wrong jointly. The police management does not condone the infringement of human rights. The police work day and night. They do good work and the little wrongs they do, erases all the good they do. There should be a law that a police officer who does wrong is prosecuted in his personal capacity rather than the current situation where the police management is sued for the actions of individual officers. May we be given the opportunity to investigate the matter so we can map the way forward,” Senior Supt Mopeli said.