THE Lesotho Lawyers for Human Rights (LLHR) recently wrote to Law Society of Lesotho president, Advocate Mosoeunyane Masiphole, demanding that the society launches an urgent application seeking an interdict restraining the army and the police from violating the human rights of civilians by subjecting them to torture and degrading treatment.
The LLHR also wants the society to ask the court to order army commander Lieutenant General Mojalefa Letsoela and his police counterpart, Commissioner Homolo Molibeli, to round up all their members who perpetrated violent crimes against civilians so that they can be charged in court.
The pleas come after soldiers and police officers deployed to enforce the nationwide lockdown allegedly tortured civilians in the past two weeks. In this wide-ranging interview, LLHR president Adv Zwelakhe Mda King’s Counsel (ZM) tells Lesotho Times Senior Reporter, Pascalinah Kabi (PK), that the army and police bosses must be held liable for their subordinates’ actions.
PK: The LLHR could easily have launched a suit against the army and police bosses. Why go through the Law Society?
SM: All the members of LLHR are members of the Law Society, a professional regulatory body with a rich history of according succor to citizens when some members of law enforcements agencies had turned themselves into hordes of terrorists against helpless citizens. A good example is afforded by its 1988 successful challenge of the emergency regularities under which the army and police operations were acting in torturing members of the society. In the process, they detained Advocates Salemane Phafane KC and Karabo Mohau KC while pursuing a habeas corpus application. The said legal instrument was declared null and void in Law Society of Lesotho v Minister of Defence and Internal Security and another  Law Reports of Commonwealth (Constitution) 226; and 1985-1990 LLR 684 (HC).
Apart from that, the Law Society’s intervention in such matters has on diverse occasions been judicially approbated as a watchdog of the rule of law, with a statutory mandate to assist in the administration of justice. The Law Society is better resourced and can readily access funds which are required to see this noble project through without any hitches.
PK: Besides the call for the Law Society to launch the suit, what is LHHR doing to assist the victims?
SM: The LLHR has indicated without equivocations that it will join cause with the Law Society. However, in the event of the Law Society, for whatever reason; is not coming to the party, the LLHR will go it alone and institute such proceedings. In fact, the LLHR is already busy collecting evidence and contacting victims, albeit not an easy task due to the surrounding circumstances and hardships of the moment.
PK: Why is it important for your organisation to demand that all security personnel who inflicted pain on civilians, under the guise of enforcing lockdown regulations, face the wrath of the law?
SM: The LLHR has indicated without equivocations that it will join cause with the Law Society. However, in the event of the Law Society, for whatever reason, is not coming to the party, the LLHR will go it alone and institute such proceedings. In fact, the LLHR is already busy collecting evidence and contacting victims, albeit not an easy task due to the surrounding circumstances and hardships of the moment.
PK: The national lockdown regulations are particularly clear on measures that are supposed to be taken against those who violate the said regulations. What is your impression on the statement by Brigadier Ntlele Ntoi that deployed personnel thought this was a total shutdown?
SM: You have correctly observed that the national lockdown regulations are very clear on their terms. Therefore, Brigadier Ntlele Ntoi’s comment is an unwittingly serious indictment on the fitness of the Army’s Chief to hold office. This makes a good case for the LLHR case that the Commander must be held accountable by the repository of power.
If the Commander cannot appreciate that nowhere in the Public Health (Covid-19) Regulations, 2020, or any other legislative framework in the country- is it permissible to torture or maim or attempt to murder suspects who are in breach of the Lockdown Regulations, then he is not fit to head such an important Constitutional Institution.
PK: Why has your organisation taken a firm stand against the security bosses in these particular cases when there have been hundreds of reported human rights violations before?
SM: It is of cardinal importance to halt the police and army’s quick descent to the state of anarchy where army operatives run amok- maiming and attempting to murder people. The nation has firsthand experience that once the security organs fall into that sloppy terrain, it is always difficult for them to claw their way back.
In as much as both security chiefs – COMPOL Molibeli and Lt Gen Letsoela are responsible for the discipline of their members, as a corollary, they must be held accountable for their subordinate members’ consistent pattern of misbehavior and wide spread serious violation of citizens’ human rights. In terms of the relevant legislative frame-work, they are both liable to be removed from office on the grounds among others, of efficiency, effectiveness or public interest.
PK: The army, through its head of public relations Brigadier Ntlele Ntoi, is on record saying deployed personnel misunderstood the lockdown to be a total shutdown, hence the human rights violations on 30 March 2020. What impression do you get from that statement?
SM: You have correctly observed that the national lockdown regulations are very clear on their terms. Therefore, Brigadier Ntlele Ntoi’ comment is an unwittingly serious indictment on the fitness of the Army’s Chief to hold office. This makes a good case for the LLHR’s case that the Commander must be held accountable by the repository of power.
PK: If I am not mistaken, security institutions bear the financial cost of their personnel’s behavior whenever they lose cases to victims in court. Don’t you think such personnel must be held personally reliable for their behavior, if so, how would that curb human rights violations by security personnel?
SM: Where victims claim damages against the state for damages arising out of human rights violations, the perpetrators are usually joined as co-defendants to nominal representatives of the government. In such cases the perpetrators are held jointly and severally liable with the government. Execution can be levied against perpetrators’ estates.
It is the trend lately in the South African jurisprudence to hold heads of institutions personally liable for costs in civil matters. I have personally attempted it in a number of civil cases that I am handling in the High Court. This is a practice that will help curb impunity and cultivate a culture of accountability and good governance in the state’s institutions so that the taxpayers’ money can be redirected towards service delivery; instead of payment of damages to victims of human rights violations by state apparatus.
PK: What is your attitude towards Prime Minister Thomas Thabane’s recent apology for the human rights violations by the security forces in the face of nationwide lockdown?
SM: The LLHR has always contended that the Prime Minister’s previous utterances were responsible for cultivating a culture inimical to the rule of law. It is a matter of public record that he directed the Police to torture alleged thieves. No sooner had he gone on public record a chorus of complaints by members of the public about police brutality and savagery surged. The Prime Minister even called for the inhuman and degrading punishment of castration of alleged rapists; a call clearly contemptuous of the Constitution and civilised values and standards enshrined therein as well as accepted International Human Rights Standards.
PK: Health Minister Nkaku Kabi recently said the Prime Minister’s language and that of the security agents will always differ when it comes to the enforcement models used by the army and the police. Could these clashing statements contribute further to human rights violations?
SM: The enormous impact which those reckless statements had on the psyche of the police and other law enforcement agencies- already prone to such excesses is unfathomable. Similar utterances from positions of power by Ministers of State have the same effect. Consequently, the Prime Minister’s apology for the security forces’ said human rights violations short of the LLHR suggested stern measures, registers for nothing.