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Justice system not just

by Lesotho Times
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VERY often I hear some people say “there is no justice in law” in this country and I am tempted to entirely agree with them.

All too often we have seen the guilty in serious crimes walking away free from their malpractices because of incompetence by investigating or judicial authorities while the small fish are fried.

The case of Motlasi Ncholu has left me thoroughly disheartened by the general administration of justice in this country.

The sacred principles of “equality before the law” and “proportionality of sentence to the crime committed” which ought to be the cornerstones of any decent justice system are very often trashed in this Kingdom as clearly exemplified in this case.

I have many other examples but due to space constraints I will confine myself to the Ncholu case whose mishandling has shattered my confidence in the Kingdom’s criminal justice system.

The Lesotho High Court recently decreed that Ncholu be arrested and start serving a 10-year-sentence, with no option of a fine, for sexual abuse.

This followed last year’s judgment in which the Quthing Magistrates Court found him guilty of fondling a teenager.

Ncholu had appealed to the High Court against both conviction and sentence.

His bail had been extended pending the resolution of his appeal.

For the record, let me categorically state from the onset that I don’t condone any kind of sexual abuse.

If Ncholu did commit a crime or any man or woman commits any offence of whatever nature, justice must indeed be meted.

My major gripe here is with the sentence imposed and the facts of the case that indeed raise some reasonable doubts. 

The fondling offence is supposed to have been committed when Ncholu and the teenager in question were booking a room in Quthing during their transit to Durban, South Africa.

There wasn’t any slight hint of any attempted rape here but mere fondling of the girl.

I am neither suggesting that fondling of an unwilling partner should be condoned.

But the 10 year jail sentence imposed on Ncholu for that offence, in my very humble opinion, defies logic. 

I will put my own doubts about  whether Ncholu, whom I have known personally as a man of integrity, indeed committed this crime aside. 

But to deprive a man of his freedom for an entire decade and rob his family of his parental responsibilities over such a seemingly minor mishap which occurred in equally dubious circumstances is inherently unjust. If our learned judicial and police officers view fondling of an unwilling victim in such serious light, why have other well-to-do fondlers been allowed to go scot free?

Last July, I was a victim of sexual harassment by the Member of Parliament for Matsieng constituency, Motsi Lehata, who fondled me at an LCD women’s conference in Maseru much to my chagrin and disappointment. 

I promptly reported the matter to the police.

If we are all indeed equal before the law, why is Lehata not serving his own 10-year-jail term for what he did to me?

Why has there been no progress in investigating my case and why do the police not take my matter seriously?

Why are other reports of illegal fondling never followed through?

Are some animals more equal than others?

Even if all culprits were brought to book by some miracle of the Almighty, I would still ask whether fondling, offensive as it is, should warrant a 10-year jail sentences.

I insist it shouldn’t.

Lesser sentences of possibly two to five-year jail terms, depending on whether the victim is a minor or not, with options of fines or some form of compensation to the victims are more appropriate.

The Sexual Offences Act of 2003 under which Ncholu was charged and convicted is with due respect a draconian piece of law which must find its place only in a Banana republic.

Its provisions are too vague and all encompassing and would require the most eloquent and sagacious judicial scrutiny to foster fairness. 

This unfortunately is not always the case as we have seen in Ncholu’s predicament.

I fear that the vague provisions of the Act can be abused to settle scores.

Moreso because if nothing is done to penalise a member of parliament who abused me in full view of many witnesses, who can be sure that alleged abuses in the privacy of hotel rooms are wholly valid. 

I am never driven by personal emotions or prejudices.

The fact that I was a victim does not detract me from seeing unfairness where it exists.

We need fairness in law.

The penalties in the Sexual Offences Bill must be reviewed to achieve proportionality between sentence and crime.

The offences ought to be clearly defined in a layman’s language.

For the avoidance of any doubt, I will repeat that I don’t condone any criminality.

If Ncholu indeed fondled the young lady in question, then justice must be allowed to take its course.

But the 10-year sentence imposed on him is not just.

It’s primitive lynching.

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