Introduction:
Perhaps oversung by legal scholars and lawyers alike is the concept of Human Rights. The government, through a social contract, has been endowed with the duty to protect the rights of the citizenry. By giving up their means of self-help in a state of anarchy, men surrendered their nature-given rights of Life, Liberty and Property and agreed to form a social contract.
John Locke, of whose views inspired the French revolution, said: ‘the aim of every political association is the preservation of natural and inalienable rights of man, these are liberty, prospect, security and resistance to oppression.’[1]
One of many definitions of Human Rights which can be assessed as less problematic is that of United Nations in one of its publications; thereat, Human Rights were defined as “those rights which are inherent in our nature and without which we cannot live as human beings.” [2]
Analytically, it makes Human Rights the rights which human beings have merely by reason of them being human, and which are critical to their survival as such. Lastly, for the purpose of this paper, Louise Henkin made a sturdy deduction that:
‘To call human rights is not to assert, merely that the benefits indicated are desirable or necessary, or that it is right that the individual shall enjoy these goods; or even merely that it is the duty of society to respect the immunity or provide the benefits. To call them rights implies that they are claims “as of right,” not by appeal to grace or charity, or brotherhood, or love, they need not be earned or deserved. The idea implies entitlement on the part of the holder…[3]”
Some notable authors base their approach to Human Rights on Dignity as a super value. They argue, and correctly so, that demands for human rights are demands for wide-sharing in values that underpin human dignity.[4]
Dignity should obstinately be seen as the spirit that inspires all other Human Rights and such intrinsic a value whose tenor does not only invite recognition, but necessitates an ardent protection by the Social Contract.
Back to the Social Contract – the populace created the government in which they entrusted to protect and preserve their Rights. This birthed a Social Contract. The Social Contract that exists now between the People of Lesotho and the government is The Constitution of Lesotho, 1993.
Background:
Covid-19, Corona Virus:
Late December 2019, a unique epidemic was discovered in Wuhan, China. Given a code name of Covid-19, Corona virus is highly infectious and has become notorious world wide for causing an ominous number of deaths since World War II. Spreading like wild fire, the pandemic continues to kill world inhabitants to this day.
On 18 March 2020, the Cabinet met and declared Covid-19 as a national emergency. Two days later the first Minister purported[5] to prorogue parliament under Legal Notice No. 21 of 2020.
Lockdown:
As a form of combatting this common enemy, states initiated the Lockdown measure. This measure restricts normal day-to-day business of citizens and saw freedoms of movement and association being confined to households and other places of residents with little access to basic services such as supermarkets, fuel stations, banks and health facilities etc. International borders were also restricted and closed for normal passing.
Lesotho became no exception to the universal resolution of Lockdown. On the 25 March 2020, the Prime Minister announced the national Lockdown. In his speech, the first minister announced that the Government of Lesotho has taken measures to combat the Covid-19 pandemic by, as loosely put:
- Allocating funds from a public purse to prevent and combat the pandemic.
- To restrict the citizen’s movement in the country starting from 12am midnight 29 March 2020.
- To only allow operation of essential services, namely:
- Health services
- Security services
- Banks
- Supermarkets and grocery stores, pharmacy and medical stores
- Civil servants preforming essential services.
- Water, fuel and energy services
- Special services of Agriculture.
- That all people are restricted moving or roaming around unless they are carrying out essential activities such as acquiring food and medical services.
- Banning all public gatherings except burials (funerals) where not more than fifty (50) attendants should be present. And at such services, prevention and protective measures of combatting Covid-19 must be adhered to.
- That all security forces be ordered to immediately take measures in prevention and combatting of Covid-19 by restricted and regulating movement of the citizens.
- a) That activities such as entertainment, sports and recreation must be halted. b) That people must avoid taking unnecessary trips outside the border. This goes out for Basotho and members of the Diplomatic Corp and International Organizations.That all Basotho citizens outside the Country for any other reason must stay at their current locations, except those who transport essential equipment like health equipment or essential household equipment.
- That journalism and reporting agencies which shall be found to lead people astray by reporting misleading information about the pandemic will be dealt with accordingly even if it means shutting down such an agency.
- That should death occur on account of the pandemic, the government will take steps as per the WHO regulation and Public Health Order, 1970.
- Calling of leaders of the coalition government to be in unity in preventing and combatting the pandemic, to work and serve the nation.
Calling upon the leaders of the country in their respective portfolios to be unanimous in fighting this common enemy.
That they must be courageous at all times as it would be the stem of success.
The Regulations:
On the 27 March 2020, the Prime Minister declared a State of Emergency in terms of Section 23 of the Constitution.[6] The then Minister of Health Mr. Nkaku Kabi passed the Public Health (Covid-19) Regulations 2020-which amongst other things deployed the Lesotho Defence Force (LDF) and the Lesotho Mounted Police Service (LMPS) to enforce and operationalize the measures contained in the said Regulations.
The said Regulations made it an offence to act in contravention thereof, and various penalties of payment of fines and imprisonment were prescribed.[7] In passing, it is worth noting that none of the legal instruments above or any other legal instrument operative in Lesotho does in nowhere authorize torture of anyone found in breach of the said Regulations.
The Effects:
- On the 30 March 2020, one Mosotho Man of Ha Lenono, Thaba Bosiu, Maseru, MOLEFI FILOANE was attacked by a swarm of uniformed Police Officers while going to buy meat for his household. This incident happened at or near Dion Butchery, Borokhoaneng Maseru. Even without much dialogue, he was assaulted with sjamboks even when on a succumbing position and posture on the ground. This assault caused grievous bodily harm on his limbs and back. He was never contacted for redress or any kind of aid.
- On the 3 April 2020, a Mosotho Man of Semphethenyane Maseru; THABANG MOHLALISE was attacked just outside of his place of residence while polishing his work shoes and preparing to go to work that afternoon. He was in the employ of one renowned security company in Lesotho. He was attacked by uniformed members of the LDF. He was assaulted with sticks, fists and riffle butts. He was left with grievous bodily injuries and broken bones on both arms and the right leg.
- On 9 April 2020, TSEKISO LEPOLESA, a Mosotho Male resident of Tsoapo-le-Bolila in Maseru, was operating his public transportation vehicle (commonly known as 4+1) somewhere at or near Ha Thamae. He was seized on a roadblock and asked to produce authorization permit to be conducting business. Upon failure to produce same, he was asked to step out of the vehicle. With his arms raised, he was shot with a side arm at point-blank by a uniformed police officer. He was shot on the right hand and a left thigh where upon he fell to the ground and lost consciousness.
- The straw that broke the carmel’s back was a case of one Mosotho farmer of Matsieng aged sixty seven (67). He was abducted by members of the Police Service after he stopped (for purposes of hitch hiking) what was apparently a Police patrol vehicle. Taken to Morija Police Station and in the company of stranger suspects, he was tortured by Police Officers. Due to the severity of the torture and his age, he collapsed and died. His family was notified with a cock and bull story that the deceased died at Morija Hospital. No sooner had his widow arrived thereat than she was told that the hospital does not have any record of such a patient. This meant that the deceased was never admitted like the Police had said.
These are just few cases that the paper was aware of, better facts relating. It is said that there are more cases of Police and Soldier brutality that occurred during the Lockdown. A local radio station of exclusive reporting, MOAFRIKA FM, has aired many of the said assaults shortly after they happened. Personal cellphones with video cameras have recorded open assaults of some of these brutalities and were distributed amongst social media platforms.
Of the mentioned brutalities, the Lesotho Defense Force and the Police never accepted wrongdoing at-least publicly or through any other media platforms.
The Law:
We are inevitably directed to Section 4 of the Constitution as a starting. The 1st subsection confers entitlement, despite race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status to fundamental human rights and freedoms, that is to say, to each and all of the following-
- Right to life
- …………….
- …………….
- Freedom from inhuman treatment
- …………….
- Freedom from arbitrary search or entry
- …………….
- The right to a fair trial of criminal charges against him and to a fair determination of his civil rights and obligations.
Section 5(1) Every human being has an inherent right to life. No one shall be arbitrarily deprived of his life.
Torture:
Section 4(d) of the Constitution needs to be read and interpreted in the light of international law, regards being held to the United Nations Convention Against Torture, inhuman or Degrading Treatment or punishment 1984 (The Torture Convention). This Article 2(1) obliges member states (of which Lesotho has ratified same) to take effective legislative, administrative, judicial and other measures to prevents acts of torture. Appalling and disturbing is when the state tortures and brutalizes citizens, in a cruel or inhumane treatment or punishment. Irked by state barbarism, the Judge in F v. Minister of Safety and Security[8] said:
“…Once we accept that our Constitution assures the public that it is safe to repose the trust in the Police, we must also accept that the Constitutional aspiration is undermined when the trust is breached.”
These unholy acts cannot be justified on any level. Moreso because they are committed for ‘purposes’ ulterior to legitimate law enforcement, such as to punish people…or for more spunk; ‘to teach them a lesson’, in stark infringement of a right to a fair trial before a competent and independent Court of law.
The Police
The Constitution establishes the Police Force[9], now amended[10] and substituting the word ‘Force’ with ‘Service’. Their responsibility as set out in subsection one[11] is for the maintenance of law and order in Lesotho. They shall have other functions as may be prescribed by any Act of Parliament.[12] The constitution also vests the commanding powers of the Police to the Commissioner of Police. His Constitutional duty and responsibility is for the administration and discipline of the Police Force.[13]
The Police, in terms of Section 4 of the Police Service Act 1998 are endowed with the duty to uphold the law, preserve the peace, protect life and property, detect and prevent crime, apprehend offender, bring offenders to Justice, and for associated purposes. For violation of their oath of office and duty in general, the Act establishes a system depending of the gravity of the offence. A Senior Police officer from a different district shall hold and conduct a hearing. For a more grievous offence, the Board shall hold a disciplinary hearing for an alleged misconduct.[14] Amongst the punishments, when found guilty, the Board of the Senior police officer may:
- Reprimand,
- Severe reprimand
- Fined not exceeding 21 days pay
- Extra duties in addition to normal duties
- Dismissal [15]
Nothing in the Police Act permits the unlawful assault and brutality of unsuspecting members of the citizenry. Neither is there a permission of violating a civilian’s Constitutional Rights. Torture has been prevalent in the Police Service and little if not nothing has been done about it by the authorities.
“The police must obey the law while enforcing the law… in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves”: Spano v. New York 360 US 315 (1959) @ 320-321
It was the Judge in Ramakatsa v. Compol[16]many similar decisions[17] who frowned upon the notorious practice of policing where suspects would be detained without cause, often brutalized and assaulted while awaiting their statutory period of appearing before the Courts. The learned Judge therein continued to reiterate that the new democratic dispensation must adhere a new policing culture of respect for human rights and freedoms and corresponding accountability for their violation. It is for this reason that Section 8 of the Constitution outlaws in absolute terms torture and inhuman or depraving punishment or treatment.[18]
Recently, the international community has witnessed a brutal arrest and ultimate death of George Floyd by the U.S. Police. Perhaps it is almost impossible to narrate this ordeal without invoking on a salient and perhaps sensitive issue of racial and ethnicity difference in the U.S. The tenor of this paper focuses and condemns the brutality and assault that led to a death of civilian, Floyd. In supposedly one of the most progressed democracies, it is worrisome to encounter such inhuman treatment in the hands of law enforcement officers. A flint of relief, perhaps through activist groups and protests, was triggered when the said police officer was charged with murder of Floyd.
For the prevalent police brutality cases and unlawful detentions, even worse; the notorious practice of suspects dying in Police holding cells because of the so-called interrogation fatigue (ho khathalla lipotsong) must be curbed from the Management of the Police service. The curbing cannot adequately manifest unless the functional accountability measures are implemented. Statutorily,[19] the Commissioner is ceased with disciplinary measures of the Police officers. Disciplinary body, The Board, must be activated to cease being a toothless bulldog. Often politicized and perhaps relevant precept herein is that Justice must not only be done, it must seen to be done.
Members of the Police service who have played an active and indirect role in the perpetuated brutalizing and unlawful detention of civilians in the guise of Covid-19 regulations must be brought to book by their officers. An accounting mechanism must be set in motion and manifest in order to see the prescribed sanctions and penalties applied. The said accounting must be published for the democratization of our government. The citizen needs to know that Unconstitutional behavior is condemned and frowned upon, and that a law-abiding citizen is safe under the watchful eye and vigilance of the police.
Like in a case of Floyd, the police and the office of the Director of Public Prosecutions must charge and prosecute the rogue police officers in the civilian courts. This will be a message of deterrence to every member of the law enforcement bodies to, in their exercise of their duty, observe the civilian rights as zealously protected in the Bill of Rights. Justice, like the will of God, must happen. And only then will the souls of the victims who have died in the hands of the police, be redeemed.
The Lesotho Defense Force:
The Military is perhaps more stringent comparatively, on misdemeanors committed by Soldiers. The Constitution establishes the Court Martial[20] in which offenses under the Lesotho Defense Force Act[21] shall be tried. The Military does not have a disciplinary board like the Police. The Act provides for those acts which are deemed as offences and shall be prosecuted in the Court Martial.[22]
There is a cardinal principle in the Military to obey orders. In fact, disobedience of lawful orders is an offence under the Act which is punishable by imprisonment.[23] When Soldiers are deployed to assist the Police in dealing with civilians, there are, depending on the nature and scope of deployment, Orders in which they must abide. Such Orders, for obvious reasons, are not publicized. Perhaps it is an opportune time to make a call for the publication of such Orders. Orders, in a democratic state like Lesotho, should abide by the Constitution as this will be a yardstick for their legality.
A cause for concern is whether a Soldier, upon deployment, can be ordered to assault and brutalize the unsuspecting and non-resilient members of the citizenry. In the name of the Constitution and the Rule of Law, coupled with the cornerstone principle of legality, operations of the Military must not and never stumble upon the civilian’s rights. This is beyond the creation of trust between a man and his government, it is the tenor in the Supremacy of the Constitution which must not be dared by a sitting government.
A soldier who commits an offence against a civilian or property belonging to a civilian can be tried in the Civil Courts. Interestingly, a mere commission of a civil wrong is deemed as an offence in the Military.[24] A conviction in the Civil Court invites a punishment under the Act.[25] The brutalities and assaults on civilians by members of the Military during the ‘lockdown’ period cannot be left unaccounted for. The Civil Courts, as explained above, have powers to inquire and try the said civil offences. They (the Courts) should be approached and names of the offending Soldiers disclosed and prosecutions and suits must be set in motion. The Courts must, upon finding them liable, admonish with a greatest degree and set harsh punishments as deterrence for flaunting of the Law.
In dealing with civilians, the Defense Force must receive appropriate training prior to such deployment. This is because in their scope of ordinary work, soldiers are trained to use and suppress force and not refrain from it. When the soldiers are deployed to work with the Police in issues relating to civilians, they must be re-educated or re-oriented in a non-military fashion, which includes adhering to statutory limits of force.[26]
RECOMMENDATIONS
- In a Constitutional Democracy the government must, with regard to the Constitution, the Lockdown and State of Emergency notwithstanding; ensure with extreme measures that the rights of the citizens, which are not derogatable, are protected. These include:
- The right to human dignity.
- The right to life
- The freedom from torture and degrading treatment.
- The right to fair hearing and a fair trial.
- The members of the Police Service and Lesotho Defense Force must instruct their members to act in accordance with the Constitution and the law. They should respect, the Rights in the Bill of Rights and promote the spirit of the Law.
- Members of the Police Service and the Lesotho Defense force must not use force. If force becomes necessary, it should only be minimum and at least proportionate to the one received.
- To secure an arrest of a person, it (force) should be used where it is reasonably necessary and proportional. Deadly force may only be used where there is a threat to life.
- The Police Service and the Lesotho Defense Force authorities must initiate investigations into the brutality cases during the ‘lockdown’.
- Pending such investigations, members of the Police officers and Soldiers who are suspected to have partook in brutalities and assault cases during the ‘Lockdown’ period aswell as the brutal death of FUSI NONO, must be suspended without pay.
- Civil, criminal and/or disciplinary action must be taken on individual Police and Military officers who conducted illegal and unlawful brutalities on civilians during the ‘lockdown’ period.
- In cases of deployment of Soldiers to work with the Police on Civilians, the Orders of operation must be publicized and the nation must be made aware. This will help in assuring Legality of those Orders against the Constitution in the Courts of law. It will also found as an accountability start-point in case of violation of fundamental Human Rights.
CONCLUSION
Worth reiterating, and perhaps most apparent, is the salient fact that this paper is not concerned with the question whether or not any Regulations promulgated or the measures implemented by the government in a bid to curb and contain the spread of Covid-19 are unlawful and/or lack legal justification. The paper pointedly postulates the damning truth that the government has failed the people, its citizens. It has debased the spirit and purpose in the Bill of Rights. The government has made a mockery of the Social Contract, and continues to do so under the rogue Law enforcement officers. The very Police and Soldiers who have a Constitutional duty to protect and safeguard the citizens have assumed a role of barbaric monsters who cannot wait for any unjustified opportunity to carry out brutal attack and unlawful arrests on the people.
Advocate Ts’oeunyane Mokobori is an admitted Advocate of the Courts of Lesotho. He is a legal practitioner and his passion is in the Human Rights field. A firm activist, he commits his time and energy in helping the less privileged to access Justice especially through litigation. His aspiration is to see every Mosotho living in Lesotho having his rights recognised and respected by the Government of the day!
Footnotes
[1] John Locke, Second Treatise on Government (1690)
[2] Human Rights, Questions and Answers 1987, page 4
[3] Age of Rights, Fransisco Forrect Martin et. al. International Human Rights Law and Practice Cases, Treatise and Materials. (Kluwer, 1997) pg 27.
[4] Echoed by O’Regan J. in State v. Makwanyane 1995(3) SA 391 (cc).
[5] ‘Purported’ because the Constitutional Court on the 17th April 2020 under case number CC/0006/2020 ABC & 6 Others v. Prime Minister and 3 Others declared such act of prorogation as null and void and of no legal force and effect.
[6] Constitution of Lesotho, Section 23 (1)- In time of war or other emergency which threatens the life of nation, the PM may, acting in accordance with the advice of the Counsel of state, by proclamation which shall be published in the Gazette, declare that a state of emergency exists for the purposes of this Chapter.
[7] See Lesotho Covid-19 Regulations 2020.
[8] 2012 (1) SA 536 CC at para 78
[9] Constitution of Lesotho Section 147
[10] Third Amendment to the Constitution 1998, amending Section 147
[11] section 147(1)
[12] The LMPS Act.
[13] Section 147 (2)
[14] See Section 43 and 44 Police Service Act
[15] Ibid at Section 46 & 47
[16] CC/22/19
[17] Maseko v. Attorney General LAC (1990-94)13, Sello v. Commissioner of Police 1982-84 LLR 58 (HC)
[18] supra 16 at para. 27
[19] Section 127(2) of the Constitution of Lesotho
[20] Section 127
[21] Lesotho Defense Force 1996
[22] Ibid, Part VII, Sections 41-81
[23] ibid 45(3) and 51(1)
[24] Section 81(1)
[25] Section 81(3) (a) and (b)
[26] Fabricius J in Collins Khoza v. Min. of Interior & other. paras 63-65