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Molibeli in big trouble

  • as Chief Justice Sakoane orders prosecution of rogue officers who tortured lawyer, client,
  • Molibeli, LMPS face massive damages claims after court says suspects were tortured.

Mohalenyane Phakela

THE Lesotho Mounted Police Service (LMPS) is in big trouble over its persistent practice of torturing civilians in its custody and subjecting them to other forms of brutality.

This after Chief Justice Sakoane Sakoane on Friday ordered the Director of Public Prosecutions (DPP), Hlalefang Motinyane, to immediately prosecute the police officers who allegedly tortured prominent human rights lawyer, Napo Mafaesa, and threatened to kill another lawyer, Kabelo Letuka.

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

He was arrested at his Hopolang Building offices 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 his client, Liteboho Makhakhe. Incidentally, Mr Makhakhe is said to be a police officer. His gun is said to have been used in the commission of a robbery on an unspecified date in Mafeteng. Mr Makhakhe was also arrested and allegedly tortured at the same Mabote station.

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

Adv Neo Komota, who moved the habeus corpus application before Judge Fumane Khabo, subsequently 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.

Justice Sakoane, who has always stood firm against police brutality, is adamant that the rogue officers must be brought to book without further ado.

Justice Sakoane said the prosecutions must begin tomorrow. It is not clear who the rogue officers are as the police said they were still investigating the issue.

The chief justice gave the order while presiding over the treason and murder trial of politicians, Selibe Mochoboroane, Mothetjoa Metsing, former army commander, Tlali Kamoli and others.

Their co-accused are Captain Litekanyo Nyakane, Lance Corporals Motloheloa Ntsane and Leutsoa Motsieloa. Mr Metsing was not in court after he absconded to avoid prosecution.

The treason trial had to be postponed due to the non-availability of Advocates Mafaesa and Letuka who are representing Lance Corporal Motsieloa and Captain Nyakane respectively. The two lawyers failed to appear in court on Friday to represent their clients because of the torture and death threats they were subjected to by the rogue police officers last week.

Mr Mochoboroane’s lawyer, Adv Motiea Teele, presented Adv Mafaesa’s sicknote to Justice Sakoane’s clerk. He also informed the chief justice that Adv Letuka could not be in court as he was still in hiding in fear for his life.

“I handed over his (Mafaesa) sicknote to your clerk after he (Mafaesa) was arrested and tortured by the police,” Adv Teele told Justice Sakoane. He (Mafaesa) has been given three days (sick leave) and we therefore ask the (treason and murder) matter to be postponed to Monday (tomorrow).

“After I was informed of Mafaesa’s arrest, I asked Letuka and (Christopher) Lephuthing to file a habeas corpus application for his release on Tuesday. Just as Letuka was in the process of serving the application, the same police called him and said they would teach him a lesson and kill him. They wanted the gun which they said Mafaesa gave to Letuka. Letuka is therefore uncomfortable because these threats against his life may materialise,” Adv Teele said.

Crown Counsel, Adv Motene Rafoneke, then said they were not opposing Adv Teele’s application for the postponement of the treason and murder trial.

An irate Justice Sakoane asked Adv Rafoneke whether this was a tacit admission that the police had assaulted Adv Mafaesa.

“I cannot have officers of this court tortured by the police,” Justice Sakoane.

“This court pronounced itself back in 1985 when lawyers were being tortured by the police. What is the DPP doing about those (rogue) police officers? Action has to be taken against them in terms of section 54 of the Police Act.”

Adv Rafoneke said he did not have instructions from DPP Motinyane regarding the police officers who allegedly tortured Adv Mafaesa and threatened Adv Letuka.

Justice Sakoane then ordered Adv Rafoneke to ask DPP Motinyane what action she intended to take against the errant police officers.

The court proceedings were adjourned for an hour to enable Adv Rafoneke to consult DPP Motinyane.

When the proceedings resumed, Adv Rafoneke told the court that DPP Motinyane had informed him that she had taken up the matter with the police management and was waiting for their report before taking any action.

But Justice Sakoane would not have any of it. He insisted that the rogue officers should be prosecuted starting tomorrow.

“Are you saying that the DPP is minded to prosecute those police officers in terms of section 31 of the Penal Code? Did she indicate how soon she would do that? This has thrown the (treason and murder) case before me overboard. I cannot proceed when the defence lawyers are not before the court. I hope you will convey to her that by Monday (tomorrow) I expect action to have been taken. I need Mr Letuka to be here on Monday and the only assurance he can get is when those officers are arrested. Concrete action, not words will give him assurance.

“I have never heard of a Law Society which negotiates with the police. The Law Society should have brought a case before this court donkey years ago,” Justice Sakoane said. This was in reference to a statement by the Law Society of Lesotho that it had engaged the police over Adv Mafaesa’s torture and the threats against Adv Letuka. In its Thursday statement, the Law Society had hinted at legal action against the police over the brutality of its officers, saying, “in the coming days, the Law Society will take appropriate action to address this malady”.

However, Justice Sakoane demanded swift action by the DPP against the officers, starting tomorrow. His call for action was echoed by the European Union (EU) ambassador to Lesotho, Paola Amadei, who said the rogue police officers should be urgently investigated and brought to book for torturing Adv Mafaesa and Mr Makhakhe. Ms Amadei also demanded action against all other officers who have previously been accused of brutality against civilians in the past. She said the torturing of suspects had no place in a democratic dispensation. Ms Amadei said 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.

Justice Sakoane’s demands for the swift prosecution of the rogue officers are in keeping with tough stance he has always shown against police brutality.

Shortly before his promotion to chief justice in November 2020, he had in that same month awarded a whooping M400 090 to a Mafeteng man, Tšolo Tjela, who was tortured by police in 2015.

Besides awarding M400 090 damages- the biggest single award to a torture victim in recent years- Justice Sakoane also lambasted former Prime Minister Thomas Thabane for his reckless utterances while in office inciting police to torture civilians and engage in other gross human rights violations.

Justice Sakoane said through his reckless utterances, Mr Thabane had incited the police and other security agencies to subject civilians to “state-sponsored violence” in violation of constitutional provisions guaranteeing their freedom from cruel, degrading and inhuman treatment.

Dissatisfied with Justice Sakoane’s judgement, the police subsequently appealed to the Court of Appeal to reduce the award in May 2021. It was heard by Justices Petrus Damaseb (Namibia), Phillip Musonda (Zambia) and Johann Van Der Westhuizen (South Africa).

In its judgement, the apex court ruled that Mr Tjela should be paid a “global figure of M250 000 for pain, shock and suffering, contumelia and medical expenses”. It also ruled that Mr Tjela was entitled to an interest of 12 percent on the award per annum from the time of the issuance of summons to the police in 2016.

Although the apex court granted the police’s application and reduced the award from M400 090 to M250 000, it echoed Justice Sakoane’s observation that the police force had become very oppressive.

“The court entirely agrees with the views expressed by His Lordship (Justice Sakoane).

“The judiciary should send a strong message of censure of police brutality. A lawless state is a menace to the enjoyment of civil liberties and constitutional democracy,” the Court of Appeal ruled.

But it appears the massive damages awards have failed to deter the police from acts of brutality under Commissioner Molibeli’s watch.

In addition to the criminal prosecution demanded by Justice Sakoane, the police boss and his subordinates are likely to face civil action which could lead to huge pay-outs to Adv Mafaesa and Mr Makhakhe.

This after High Court judge, Fumane Khabo, on Friday said “the court has satisfied itself that he (Makhakhe) was tortured and his right cheek was bruised. He is therefore released forthwith”.

Justice Khabo said this while presiding over a habeas corpus application for the police to release Mr Makhakhe from their custody.

Justice Sakoane’s demands for the prosecution of the rogue officers and Justice Khabo’s statements are a clear indication that the High Court is convinced that Adv Mafaesa and Mr Makhakhe were tortured. The duo therefore stands a good chance of winning substantial damages should they go on and sue Commissioner Molibeli and his subordinates.

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