Mohalenyane Phakela / Moorosi Tsiane
HUMAN rights lawyer, Fusi Sehapi, has threated to sue the government should it not lift the “illegal” 10pm to 4am curfew announced by Police Commissioner Holomo Molibeli on Tuesday.
Advocate Sehapi has since written to the Minister of Local Government, Chieftainship, Home Affairs and Police, Lebona Lephema, asking him to revoke the nationwide curfew because it is “illegal”. The letter was copied to Commissioner of Police Holomo Molibeli.
Commissioner Molibeli invoked provisions of sections 37A and 37B of the Internal Security Act 1984 to impose the nationwide curfew which runs from 10pm to 4am every day following a spate of murders that have imperilled the country. The details of the curfew are contained in a gazette named the Internal Security Curfew Order Notice 2023 . It was issued on Tuesday – the day the curfew started.
Any person who is caught in contravention of this curfew will be liable to two years imprisonment, a fine of M10 000 or both.
The curfew follows the Sunday night gruesome murder of Tśenolo FM presenter, Ralikonelo “Leqhashasha” Joki.
Mr Joki was shot dead by unknown gunmen as he exited the premises of his workplace, Tsenolo FM, just after his 6pm to 9pm radio show.
Mr Lebona went on national television on Monday night to announce the curfew as the government now tries to come to grips with a crime rate that is now way out of control. The minister set the stage for Commissioner Molibeli to introduce the curfew.
While Adv Sehapi condemned Mr Joki’s murder, he believes the government’s response in imposing the curfew is wrong. The curfew infringes on the rights of citizens to free movement as enshrined in the Constitution, the lawyer argues. He says Section 2 of the Constitution outlaws any other law which contradicts the provisions of the Constitution.
“It is the duty of the government of Kingdom of Lesotho and every citizen to stand up and fight for order and the rule of law. However, the fight against criminals must be made within the confines of the law, lest it encroaches into the rights of innocent law abiding citizens,” Adv Sehapi says in his 16 May 2023 letter.
“It is my considered opinion as a citizen of this country entitled to participate in governmental affairs in terms of section 2 of the Constitution to assert that the announced curfew is legal, but overbroad/ excessive/ disproportionate.
“The reason is simple, it encroaches on the rights of the innocent and the law abiding citizens ranging from freedom of movement, right to liberty, right to earn a living by engaging in legitimate businesses that thrive in the late hours. The law requires that the protection of public life and public safety be obtained in a less painful manner.”
Adv Sehapi further advises that there is an internal remedy which the government can implore, which is the deployment of police officers and soldiers to patrol the streets. He says curfews often result in torture of people by national security officers.
“In the circumstances, it my considered opinion that the less intrusive manner of securing public life and safety is to deploy more security personnel to patrol the country day and night as criminal acts are nearly committed equally during day and night. Above all the police excesses are not unknown. In almost every curfew, innocent civilians lose teeth, form and shape, and even lives. Because there are no legal and other guarantees and safeguards put forth to ensure that the security personnel operate within the strict confines of the law.
“It is high time that the government of Lesotho considers investing more in the security sector, inter alia by providing police with proper trainings, enough vehicles, armoury, forensic equipment, properly paid risk allowances and clear and unbiased promotions to the high police hierarchies so as to equip and motivate police. The government must also resolve the longstanding hostility between police and defence (sic) caused by the unclear law which does not clearly define the confines and uninion/interraction (sic) of these institutions.
“As a corollary, I humbly appeal to your good office to reverse the decision of limiting movement before its implementation. It is not appropriate that every bona fide wrong-doing be corrected through intervention of courts. Failing which, I shall have no alternative but to invoke infacie curiae relief (court proceedings).”
The curfew has been strongly criticised by various organisations and individuals, mostly the youth whose partying habits will now be severely restricted. Night Club owners have also lamented the risk of losses because they now have to close shop earlier than 10pm to allow staff and patrons to get home before the curfew starts.
There are also street vendors who operate businesses at areas which are busy at night such as Kingsway Street in Maseru.
A copy of Advocate Sehapi’s letter, of which the Lesotho Times has a copy, bears the police legal department’s stamp of 17 May 2023, meaning it has been received and acknowledged. However it is very unlikely that the government will revoke the curfew. Such a move will paint a picture of a very weak government unable to make hard decisions. And if Adv Sehapi keeps his word, then the matter is very likely to end up in the courts.
