Advocate Pansy Tlakula
Lekhetho Ntsukunyane
THE African Union (AU) requested the government of Lesotho to explain the steps it was taking to promote and protect human rights in the Kingdom but the government did not respond despite an explicit request by the continental body’s human rights organ for a “prompt response”.
The AU’s African Commission on Human and People’s Rights (ACHPR) wrote a letter to Prime Minister Pakalitha Mosisili shortly after the arrests, interrogation and charging of Lesotho Times journalists and the near fatal shooting of editor Lloyd Mutungamiri in July with a specific request for “favourable attention (of the letter) and prompt response”.
However, one of the authors of the letter, ACHPR Commissioner Pantsy Tlakula, said the government of Lesotho had not yet responded to the letter dated 15 July 2015.
Commissioner Tlakula said she had written to Lesotho urging the government to uphold freedom of expression and the media but refused to disclose the details of her letter.
However, the Lesotho Times was this week able to obtain a copy of the letter which asked the government to explain the steps it “has taken or intends to take” to fulfill its obligations to promote and protect human rights under Article 1 of the African Charter.
The letter also asked the government to clarify its position on the shooting of Mr Mutungamiri, the arrest and interrogation of reporter Keiso Mohloboli as well as the charging of publisher Basildon Peta with criminal defamation, among other things.
The letter chronicled events that had transpired since Ms Mohloboli and Mr Mutungamiri were initially taken in by the police for questioning over a story about an exit package for Lesotho Defence Force (LDF) commander Lieutenant-General Tlali Kamoli, through the charging of Mr Peta with criminal defamation over this newspaper’s satirical column, Scrutator, as well as the subsequent shooting of Mr Mutungamiri. The ACHPR cautioned that while it was not reaching any conclusions on the information at its disposal, it was concerned that “if true, the government of Lesotho would be in grave violation of several rights enshrined in the African Charter on Human and People’s Rights (the African Charter) as a state party, including Article 1 on the obligation to adopt legislative or other measures to give effect to the provisions of the African Charter; Article 9 on the right to freedom of expression; and Article 25 on the duty to promote human rights”.
The ACHPR is a quasi-judicial body tasked with promoting and protecting human rights throughout Africa, interpreting the African Charter on Human and Peoples’ Rights as well as considering individual complaints of violations of the charter.
Apart from Ms Tlakula, who is also the former executive director of South Africa’s Independent Electoral Commission, the 15 July 2016 letter to Dr Mosisili, was also signed by Reine Alapini Gansou of Benin, in her capacity as Special Rapporteur on Human Rights in Africa.
Mr Mutungamiri (50), was shot by two assailants at his home in Upper Thamae on 10 July 2016 in an obvious assassination attempt. He has since undergone specialist surgery in South Africa to repair his shattered lower jaw and to remove a bullet that lodged in his left ear and other bullet fragments from his face.
Following the shooting, Ms Mohloboli (32) quit her job and fled the country fearing for her life.
Mr Peta is now in court charged with defamation over his newspaper’s satirical comment.
In the letter, which was also copied to the Foreign Affairs and Justice ministries, the ACHPR asks the government to clarify its investigations on the shooting of Mr Mutungamiri to bring the culprits to book.
The letter explains in great detail the need to protect freedom of expression and the press and why it is wrong for authorities to ask journalists to reveal their sources as had been requested of the Lesotho Times journalists.
The letter also appears to pour scorn on criminalizing the journalism profession through the raising of criminal defamation charges against journalists, saying public figures should tolerate a greater degree of criticism.
The ACHPR commissioners said they had noted with concern reports indicating Ms Mohloboli and Mr Mutungamiri “were both interrogated by military and police officials” in order to get them to disclose their sources for a story that appeared in the Lesotho Times of 23 June 2016 titled, “Exit strategy for Kamoli”.
In the story, the Lesotho Times had reported about negotiations for an exit strategy for Lt-Gen Tlali Kamoli in line with a recommendation by a Southern Africa Development Community resolution that he be removed from the helm of the army.
Reads part of the letter: “Your Excellency, according to the information we received, on Thursday 23 June 2016, Ms Mohloboli was arrested around 17:00 hours and taken to Police Headquarters, where she was interrogated by a panel of six police officers, led by the Assistant Commissioner of Police (name withheld),” the commissioners state.
“She was released later that evening at around 22:00 hours, on condition she write an apology letter to Lieutenant-General Tlali Kamoli of the Lesotho Defence Force, copying the Commissioner of Police Molahlehi Letsoepa, in addition to running an apology in the Lesotho Times and Sunday Express newspapers.
“On Friday 24 June 2016, while at the office writing the apology, three police officers arrived and took Ms Mohloboli and Mr Mutungamiri to Mabote Police Station, where they were interrogated and asked to disclose their sources for the article. During the period, they were not allowed to seek or engage the services of their lawyers, in spite of the fact they made this request.”
The ACHPR commissioners say a police officer (name withheld) heading the CID police office at the Mabote police station, informed Ms Mohloboli and Mr Mutungamiri despite the agreement reached for Ms Mohloboli to apologise, “the police were given a directive from government officials to ensure the journalists revealed their sources”.
“It is further alleged the police officer (name withheld) indicated discussions would also be held about a satire column in the paper, known as Scrutator, because Mr Mutungamiri, the (alleged) writer of the column had over the years shown disrespect to Lieutenant-General Kamoli, the commander of the army.”
“On Tuesday 5 July 2016, Mr Basildon Peta, the newspaper’s publisher, and Mr Mutungamiri reported to the police and later taken to magistrate court where they were charged with defamation and crimen injuria,” the commissioners note.
“With regards to the right to freedom of expression, we wish to draw Your Excellency’s kind attention to the Declaration of Principles on Freedom of Expression in Africa (the Declaration), which in its preamble underscores the vital nature of freedom of expression and reaffirms ‘the fundamental importance of freedom of expression as an individual human right, as a cornerstone of democracy and as a means of ensuring respect for all human rights and freedoms’, and lastly indicates that ‘laws and customs that repress freedom of expression are a disservice to society’.
“Principle 1(1) and II (2) of the Declaration provide that freedom of expression and information is a fundamental and inalienable human right, whose restriction should be provided by law and serve a legitimate interest in a democratic society.”
The commissioners state Principle XII of the Declaration provides that “states should ensure their laws relating to defamation conform to the following standards: no one shall be found liable for true statements, opinions or statements regarding public figures which it was reasonable to make in the circumstances; public figures shall be required to tolerate a greater degree of criticism”.
“Furthermore, Principle XI(1) provides that attacks such as the murder, kidnapping, intimidation of and threats to media practitioners and others exercising their right to freedom of expression undermines independent journalism, freedom of expression and the free flow of information to the public, whereas Principle XI(II) stipulates that state parties have the obligation to take affective measures to prevent such attacks and, when they do occur, to investigate them, to punish perpetrators and to ensure that victims have access to effective remedies.
“Lastly, Principle XV, on the protection of sources and other journalistic material, provides that media practitioners shall not be required to reveal confidential sources to information or to disclose other material held for journalistic purposes except in accordance with the following: “The identity of the source is necessary for the investigation or prosecution of a serious crime, or the defence of a person accused of a criminal offence; the information or similar information leading to the same result cannot be obtained elsewhere; the public interest in disclosure outweighs the harm to freedom of expression; and disclosure has been ordered by a court, after a full hearing.”
The commissioners also refer to the United Nations Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognised Human Rights and Fundamental Freedoms.
“. . . (it) stipulates in its Article 12(2) that the state shall take all necessary measures to ensure the protection of everyone, individually or in association with other persons against any violence, threats, retaliation, adverse discrimination, pressure or any other arbitrary action as a consequence of his or her legitimate exercise of the rights referred to in the Declaration.”
The ACHPR inquires on the steps taken to bring the perpetrators of Mr Mutungamiri’s shooting to book.
“In light of the above, Your Excellency, we would be grateful if the government of the Kingdom of Lesotho would kindly provide clarification on the above reports, in addition to investigating the attack on Mr Mutungamiri, in order to bring those responsible to justice.
“Furthermore, we respectfully urge the government of the Kingdom of Lesotho, to kindly inform us of steps it has taken or intends to take in fulfilment of its obligations under Article 1 of the African Charter to ‘recognise the rights, duties and freedoms enshrined in the Charter and adopt legislative and other measures to give effect to them,’ as well as cultivating a culture of respect for these rights.”
While noting “and appreciating” Lesotho’s commitment in having ratified the African Charter and other relevant human rights instruments, the agency states: “We sincerely hope that our appeal will receive Your Excellency’s favourable attention and prompt response.”
Commissioner Tlakula said: “I am a member of the ACHPR and, incidentally, Lesotho is one of the countries under my purview because each commissioner is allocated a country.
“I have intervened in Lesotho in my capacity as the country rapporteur, but also as a special rapporteur on freedom of expression and access to information. I intervened in the case regarding the arrest of some military people and recently also intervened in a case relating to the shooting and arrest of two journalists in Lesotho.”
Asked whether she was successful in her interventions, she said: “I can only say the first intervention on the arrest of the military personnel I did receive a response from the government of Lesotho, clarifying from their point of view what the issues were. But relating to the two journalists, I haven’t received any response.”
The Lesotho Times solicited a comment from Dr Mosisili’s office yesterday and met the premier’s Senior Private Secretary, Mamello Morrison, who requested a copy of the letter. After she received the copy from this reporter, Ms Morrison said she would conduct “internal consultations” on the letter without elaborating.
l Meanwhile, Lesotho Times Publisher and CEO Basildon Peta yesterday said Mr Mutungamiri was now out of danger after undergoing successful reconstructive surgery and other procedures.
“We are happy that he is on the mend and he is now in a much better position than before. The doctors have given him substantial time to recuperate to enable him to get to proper fitness. We thank the heavens for what is clearly a miracle. Our special thanks to all the hardworking medical staff in Maseru who attended to him soon after the incident and prepared for his transfer. We also wish to thank everyone who conveyed their words of support during this ordeal.”
