Lekhetho Ntsukunyane
Lesotho Lawyers for Human Rights—a representative body established in 2012 by a group of legal practitioners—has called on government to establish a Human Rights Commission “with full powers to investigate human rights violations in the country”.
The call follows “concerns” over the country’s security situation which culminated in the fatal shooting on 25 June 2015 of former Lesotho Defence Force (LDF) Commander Maaparankoe Mahao, by the army. Brigadier Mahao was laid to rest in Mokema yesterday and his killing—allegedly as he resisted arrest for plotting a mutiny in the LDF—has since sparked outrage among the public.
In a letter dated 4 July 2015 and addressed to, among others, Prime Minister Pakalitha Mosisili, the lawyers, through their president Advocate Zwelakhe Mda (King’s Counsel), want the government to “take accountability by ensuring the rights of victims are protected and perpetrators brought to justice”.
They further call for an amendment of the Police Service Act of 1998 “by empowering the Police Complaints Authority to directly receive complaints from victims of police and army brutality; to subpoena witnesses and submit its findings to the Director of Public Prosecutions (DPP) to prosecute”.
The letter is also addressed to National Assembly Speaker, Ntlhoi Motsamai, Leader of the Opposition in Parliament Thomas Thabane, Attorney General Tšokolo Makhethe (KC), DPP Leaba Thetsane (KC) and the Law Society of Lesotho.
The lawyers noted Lesotho to be signatory to a number of international human rights instruments “whose aim is to promote and protect fundamental human rights”.
The letter notes: “Recent events of serious violations of human rights in the Kingdom are, in truth, not new. The only difference with regards the latest incident is that the victim is a decorated senior army officer. The fundamental challenge really, has to do with entrenching a human rights culture and building strong institutions to support democracy.”
This, the lawyers added, was a challenge which successive governments “since 1993 when Lesotho became a democratic state again, have by omission or design, failed to tackle for reasons that maybe, have to do with lack of leadership”.
The lawyers say the attitude of those who are elected into government and make laws “has been to conduct the affairs of the State as if it is business as usual in that they failed to craft enduring sustainable governance programmes, institutional and legal reforms that respond to the call of the Bill of Rights in the Constitution. Since laws are not self-executing and institutions do not operate themselves, there is a duty on the part of the elected leadership to provide human resources with competent and relevant expertise to enforce the laws and operate the institutions.”
According to the letter, this “directly says that the culture of law-enforcement and provision of security by the police, the army and allied law-enforcement agencies has to be turned around towards promoting, protecting and fulfilling the rights that are stipulated in the Bill of Rights”.
The lawyers further say those who are responsible for past and present violations of human rights “are deserving of the opprobrium of the nation and must be brought to book. There should be accountability by the perpetrators as well as investigators of human rights violations. The accountability must be in the form of effective and transparent investigations of all human rights violations, resulting in appropriate prosecutions and punishment.
“This is a matter of great concern that some leaders of political parties actually encouraged police brutality through political statements and utterances that said the police should not hesitate to shoot to kill or maim suspects.
“The enormous impact which those reckless statements uttered from positions of power may have had on the psyche of the police and army operatives, already prone to such excesses, cannot be underestimated. That is why we contend that on the list of perpetrators of human rights violations be included the said political instigators.”
In any event, the lawyers say, giving an unlawful order itself is a criminal offence under the Penal Code “such that the person who gives it commits a criminal offence”.
The lawyers continued: “It is against the foregoing background that we submit that the death of our colleague, Advocate Maaparankoe Mahao and other ‘undecorated’ citizens, are bitter fruits of State-driven assaults of human rights on citizens arising from a culture of institutional brutalities.
“When human rights are being violated, some citizens reduce such violations to a joke by dignifying death in police custody, for example, being due to tiredness by suspects in answering questions (ho khathalla lipotsong). It is such unfortunate and irresponsible devaluing of life which condones a culture of impunity and unaccountability that contributes to police brutality.”
According to the lawyers, torture is not allowed by Lesotho laws, hence their appeal to government.
“The Constitution of Lesotho, 1993, provides for absolute prohibition of torture or inhuman or degrading punishment or other such treatment. Indeed, such prohibition underscores the universal accepted position under international law which is that torture or inhuman/degrading treatment constitute crimes for which perpetrators must be arrested by member-states under the Rome Statute of the International Criminal Court (ICC).
“Lesotho ratified the Rome Statute and went further to domesticate it under Part VI of the Penal Code 2010. In the same vein, Penal Code 2010 criminalises the assault of people and only allows the application of reasonable physical force in the following narrowly defined circumstances; for the furtherance of public justice, execution of lawful orders, prevention of crime, defence of person or property or lawful and reasonable chastisement of children. It is significant that nowhere in the Penal Code is it permissible to use force to torture or maim or kill suspects who are under the custody and control of the police, the army and prison warders.”
The lawyers further noted that force which is allowable to bring a suspect under control or prevent him or her from escape or evading arrest has to be proportionate and exercised in a disciplined manner so as to respect the fundamental rights of the individual concerned.
“It can never and should never be used as a license by law-enforcement agencies and the army to violate the constitutionally protected rights of suspects who, in any event, are constitutionally presumed to be innocent until a court of law finds otherwise. As regards the protection of the constitutional right to life, the Penal Code criminalises the posing of a risk of injury or death. This is besides crimes of culpable homicide and murder.
“The aforegoing constitutional and legal architecture clearly burdens the government, the Director of Public Prosecutions, the police and the army to discharge their functions in a manner promotive of the rights of citizens and in furtherance of the Rule of Law. And in this respect, all deaths in custody and unnatural deaths out of custody must be reported in order to trigger judicial investigations by magistrates acting in concert with the police, Director of Public Prosecutions and the District Administrator as it is their statutory obligation under the Inquest Proclamation of 1954.
“Given these clear constitutional duties, there can be no acceptable reason for government’s inaction against acts of torture (which for example have been proven in several habeas corpus applications in the High Court of Lesotho involving members of the army) and loss of life of suspects in police custody which are reported daily in the media.”
Advocate Mda told the Sunday Express the letter was yet to be responded to, while Government Secretary Moahloli Mphaka, said he was not aware of it.
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