Lesotho police service becoming "an institution of official torture" - constitutional court

3 May 2019 · Carmel Rickard

The police in Lesotho, rapidly acquiring a reputation for acting as though they are above the law and even above the courts, have had a rude awakening: that country’s constitutional court has delivered a strongly-worded decision taking the police authorities to task for not obeying the law, and clarifying the rights of suspects in relation to police arrests, detention and interrogation. The judges found that the police violated the constitutional rights of two suspects, held far beyond the time provided for by the law and under unlawful conditions. They also said that, against the background of a “disturbing public outcry about increasing deaths of suspects in police custody”, it was time for “a judicial response” by way of “guidelines” for the police, prosecutors and the magistrates court.

Read the judgment on LesLII

From the first words of the introduction there can be no doubt where this judgment is headed – and that it will be a momentous step for the police and the courts in Lesotho.

In their introduction, three constitutional judges quote from a watershed decision of the US Supreme Court, one that proved a key moment in the US court’s journey towards the protection of individuals against police excesses: “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.”

Those words, say Lesotho's constitutional court judges, capture the essence of what this case is all about: the unlawful detention of suspects far beyond the 48-hour period allowed by both constitution and statute. This prolonged detention caused desperate concern by their families who feared they had been tortured. Neither they nor the family’s legal counsel were able to obtain access to them or to get clear or accurate information about what had happened to them.

The mothers of the two men even confronted the police in person, and the judges quoted a Sesotho saying that in their view characterized the action of the women: “the mother grabs the sharp edge of the knife”.

Finally, late last year, the women asked that the court should order the police to produce their sons. At the first hearing, the court was told that the two men had now appeared in court charged with robbery and were being held in custody in Maseru. Was that, therefore, the end of the matter, as the police argued? The constitutional court judges held otherwise, and they used the occasion to spell out what the constitution and statute law demand of the police in relation to arrest and detention of suspects.

The judges make the point – extremely relevant in Lesotho – that police may not arrest or detain someone because of a “political vendetta”. Nor may they act from malice or revenge. “Shortly stated, the police must serve the law and the law alone, and not listen to the tune of a political trumpet.”

They also deal extensively with the problem of deaths in police custody: “The notorious practice of the police of calling people under the pretext of being assisted with investigations or calling them for questioning and subsequently causing them to die in police custody because of so-called interrogation fatigue is unlawful, antithetical to policing in a democratic society and reminiscent of police behaviour in the bygone era of dictatorial government when they enforced the notorious Internal Security legislation.”

At the heart of the judgment is clarification of police obligations in relation to the 48-hour rule established by the constitution. After that 48 hours (and any extra time needed to get the arrested person to court, given the difficult terrain of much of Lesotho), continued detention is only legal if a warrant for further detention is granted. If no charge has been formulated, then a warrant cannot be issued. When a court considers whether the person was brought to court “as soon as possible” it has to consider whether the police used a “circuitous route” instead of the most direct road, or whether the police acted according to their own convenience or “in deliberate non-compliance”, the judges held.

The police must also tell the arrested person the grounds for the arrest, since the law is framed so as to prevent arrests that are made merely to “harass citizens or arrests founded on flimsy excuses, rumour or gossip”.

In very firm terms the judges also clarified that a detention, preceded by an unlawful arrest, could not be extended. “A further detention in custody made on the foot of an expired statutory 48 hours period or absent a charge, is not valid.”

When police did not observe the Judges’ Rules – the right to remain silent during questions and the prohibition of force or torture to get confessions or information – the “stream of justice is fouled” and ordinary tax payers ended up having to pay damages in claims against the police: “in other words, the tax payer pays for police brutality” and the community loses trust in the police.

Just as much to blame was the magistracy, according to the court’s finding. In this case the magistrate merely signed and stamped forms without proper consideration of whether the detention was valid. The magistrate concerned had no authority to sanction the “clear abuse of police powers” as he did. This was “highly irregular and illegal” and showed the magistrate dismally failing in his duty to protect the two men from unconstitutional and unlawful police conduct. The court thus ordered that the attention of the country’s Chief Magistrates was to be drawn to the judgment.

The judgment ends with a series of 13 guidelines for the police, prosecutors and the magistrates courts on how arrests should be carried out, and the time-frames involved. They also spell out the rights of an arrested person – to consult a lawyer and be allowed access by a close relative, for example – and the procedure if a detainee is seen to have “any marks or injuries”, to have suffered injuries during arrest or detention, or even to die while held by police.

Backed by the court’s brave and clear finding that various of their rights were violated by the police and magistrates, there can be no doubt that the two men will bring significant damages’ claims – regardless of the outcome of the pending robbery trial.

But spare a thought too, for the mothers. They are owed a debt of gratitude, not just by their sons, but also by everyone else in Lesotho. Through their determined action they moved the court to this extraordinary, wide-ranging decision, something that will surely help ensure police, prosecutors and magistrates stay within the law and that the rights of suspects are respected.

Carmel Rickard

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