AFRICAN UNION
UNION AFRICAINE
UNIÃO AFRICANA
African Commission on Human & Peoples’
Commission Africaine des Droits de
Rights
l’Homme& des Peuples
No. 31 Bijilo Annex Lay-out, Kombo North District, Western Region, P. O. Box 673, Banjul, The Gambia Tel: (220) 441
05 05 /441 05 06, Fax: (220) 441 05 04
E-mail: au-banjul@africa-union.org; Web www.achpr.org
REPORT OF THE THIRD HUMAN RIGHTS PROMOTION MISSION TO
THE KINGDOM OF LESOTHO
08 - 12 OCTOBER 2019
1
TABLE OF CONTENT
TABLE OF CONTENT…………………………………………………………………………2
ACRONYMS AND ABBREVIATIONS……………………………………………………..4
ACKNOWLEDGEMENTS ……………………………………………………………………7
EXECUTIVE SUMMARY ……………………………………………………………………..8
PART ONE……………………………………………………………………………..………11
I.
INTRODUCTION…………………………………………………………………….11
II.
TERMS OF REFERENCE…………………………………………………………….12
III.
THE PROFILE OF THE KINGDOM OF LESOTHO……………………………14
A. Overview of the historical, geographical, demographic, economic and international
profile of Lesotho………………………………………………………………………….14
B. Overview of the form of government and administration of Lesotho………………15
C. Legal framework for the Promotion and Protection of Human Rights……………..17
African legal instruments……………………………………………………………………...17
International legal instruments……………………………………………………………….17
National legal framework for the Promotion and Protection of Human Rights…………18
PART TWO…………………………………………………………………………………….20
I.
METHODOLOGY AND CONDUCT OF THE MISSION……………………….20
II.
MEETINGS HELD BY THE DELEGATION OF THE COMMISSION…………20
1. Ministry of Law, Constitutional Affairs and Human Rights…………………………..20
2. Ministry of Justice and Correctional Service…………………………………………….24
3. Ministry of Mining…………………………………………………………………………25
4. Ministry of Foreign Affairs………………………………………………………………..26
5. Ministry of Education and Training……………………………………………………...27
6. Ministry of Gender, Youth, Sport and Recreation……………………………………...29
7. Ministry of Home Affairs and Commissioner for Refugees…………………………...31
8. Ministry of Health………………………………………………………………………….32
9. Ministry of Social Development………………………………………………………….35
10. Attorney General…………………………………………………………………………..37
11. Acting Chief Justice………………………………………………………………………...37
12. Deputy Commissioner of Police…………………………………………………………39
2
13. The Senate………………………………………………………………………………….41
14. The National Assembly……………………………………………………………………43
15. The Independent Electoral Commission………………………………………………...44
16. The Office of the Ombudsman…………………………………………………………...45
17. Directorate on Corruption and Economic Offences…………………………………….47
18. The Leaders of Opposition………………………………………………………………..48
19. The Faculty of Law of the National University of Lesotho…………………………….50
20. The United Nations System in Lesotho………………………………………………….51
21. Lesotho Law Society……………………………………………………………………….54
22. A Cluster of Civil Society Organisations………………………………………………...56
23. Lesotho National Federation of the Disabled……………………………………………61
24. Media Institute of Southern Africa and Journalists…………………………………….62
25. Maseru Senior Women’s Association (MSWA)…………………………………………65
26. Visit of Maseru Central Prison…………………………………………………………….67
27. Press Conference…………………………………………………………………………...69
PART THREE…………………………………………………………………………………..70
OBSERVATIONS AND ANALYSIS OF THE HUMAN RIGHTS SITUATION IN
LESOTHO………………………………………………………………………………………70
I.
POSITIVE DEVELOPMENTS IN THE HUMAN RIGHTS SITUATION OF
LESOTHO………………………………………………………………………………70
II.
AREAS OF CONCERN……………………………………………………………….74
PART FOUR: RECOMMENDATIONS…………………………………………………….82
•
To the Government………………………………………………………………………..82
Legal reforms and Participation………………………………………………………………82
Security Sector………………………………………………………………………………….83
Judiciary………………………………………………………………………………………...83
Death Penalty…………………………………………………………………………………..84
Prevention of Torture…………………………………………………………………………84
Prisons…………………………………………………………………………………………..84
National Human Rights Institution………………………………………………………….85
Office of the Ombudsman……………………………………………………………………..85
Freedom of Expression and Access to Information…………………………………………85
3
Youth…….………………………………………………………………………………………86
Women…………………………………………………………………………………………..86
Persons with Disabilities and Older persons………………………………………………...87
Children ………………………………………………………………………………………...87
Economic, Social & Cultural Rights………………………………………………………….88
HIV/AIDS………………………………………………………………………………………88
Extractive Industries…………………………………………………………………………...88
Ratification and domestication of international human rights instruments……………..88
Cooperation with the Commission…………………………………………………………..89
•
To civil society……………………………………………………………………………..89
•
To the International Community and Partners………………………………………..89
ANNEXES…………………………………………………………………………………………………
4
ACRONYMS AND ABBREVIATIONS
ABC
All Basotho Convention
BCP
Basotho Congress Party
BNP
Basotho National Party
MFP
Marema-Tlou Freedom Party
DC
Democratic Congress
AD
Alliance for Democrats
NIP
National Independence Party
LCS
Lesotho Correctional Service
LMPS
Lesotho Mounted Police Service
LDF
Lesotho Defence Force
CSOs
Civil Society Organisations
NGOs
Non-governmental Organisations
DPSPs
Directive Principles of State Policy
PR
Proportional Representation
FPTP
First Pass The Post
LCMPA Legal Capacity of Married Persons Act
CP&E
Criminal Procedure and Evidence Act
CPWA
Children’s Protection and Welfare Act
CGPU
Child and Gender Protection Unit
MDGs
Millennium Development Goals
SDGs
Sustainable Development Goals
AIDS
:
Acquired Immune Deficiency Syndrome
ARV
:
Antiretroviral
AU
:
African Union
CSO
:
Civil Society Organization
EU
:
European Union
FGM
:
Female Genital Mutilation
5
GDP
:
Gross Domestic Product
HIV
:
Human Immuno deficiency Virus
ICC
:
International Criminal Court
IEC
:
Independent Electoral Commission
NGO
:
Non-Governmental Organization
UN
:
United Nations
UNDP
:
United Nations Development Programme
UNICEF :
United Nations International Children’s Emergency Fund
6
ACKNOWLEDGEMENTS
The African Commission on Human and Peoples’ Rights (the Commission) is grateful to
the Government of the Kingdom of Lesotho for kindly hosting this third human rights
promotion mission undertaken by a delegation of the Commission from 8 to 13 October
2018.
The Commission expresses its sincere gratitude to the country’s highest authorities for
providing the delegation with the necessary facilities and personnel for the smooth
conduct of the mission.
The Commission also expresses its appreciation to Honourable Mr Lebohang Hlaele, the
Minister of Law and Constitutional Affairs, for his personal involvement in the
organization of the various meetings which greatly contributed to the success of the
mission.
Finally, the Commission expresses its gratitude to Ms Polo Chabane and Mrs Bokang
Lethunya from the Ministry of Law and Constitutional Affairs, and Ms Pulane Lechesa
from the Ministry of Foreign Affairs and International Relations, for assisting the
delegation throughout their stay and for facilitating the organization of the various
meetings.
7
EXECUTIVE SUMMARY
26. Following the authorization of the Government of the Kingdom of Lesotho, and
in accordance with Article 45(1) of the African Charter on Human and Peoples’
Rights (the Charter), a Delegation of the African Commission on Human and
Peoples’ Rights (the Commission) undertook a human rights promotion mission
to the Kingdom of Lesotho (Lesotho) from 08 to 12 October 2019.
27. The Delegation was composed of Honourable Commissioner Yeung Kam John
Yeung Sik Yuen, Commissioner in charge of the promotion and protection of
human rights in the Kingdom of Lesotho, Chairperson of the Commission's
Working Group on the Rights of Older Persons and Persons with Disabilities in
Africa; and Mr Bruno Menzan, Legal Officer at the Secretariat of the Commission.
28. The objectives of the mission were, inter alia, to promote the African Charter and
all other regional and international human rights instruments which the country
has ratified; strengthen relations between the Commission and Lesotho, engage
with relevant stakeholders, exchange views on ways and means of enhancing the
enjoyment of human rights in the country and seek information on human rights
issues of particular concern to the Commission; follow up on recommendations
made in the past to Lesotho by the Commission; and encourage Lesotho to bring
to date its Periodic Reports in accordance with Article 62 of the African Charter.
29. From the various meetings, exchanges and engagements with both state and nonstate actors relevant to the promotion and protection of human and peoples’ rights
in Lesotho, as well as from the visits to the Maseru Central prison, the Delegation
could acknowledge the relative stability which prevails in the country at the time
of its visit as Lesotho has gone through political turmoil throughout the past six
years which elapsed between the present visit of the Commission and its last
promotion mission in 2012.
30. The Commission commends the People of Lesotho, their authorities and leaders
who relentlessly strive to stabilise and reform the country in order to bring and
maintain it on the path of a long-lasting peace and democratic environment.
31. The Commission notes with satisfaction the overall dialogue and reform process
initiated with the support of the Southern African Development Community
(SADC), the African Union and developments partners; including the United
Nations.
32. The Commission further notes the implementation of some of the previous
recommendations of the Commission, including the commitment of Lesotho to
submit all its overdue reports to the Commission in October 2018.
8
33. Despites these positive developments, the Commission is concerned about many
challenges, including the following difficulties :
(i)
the national dialogue and reform process;
(ii)
the constitutional crisis caused by the conflicted relationship between the
Judiciary and the Executive which has a negative impact on the smooth
functioning of institutions in a democratic society;
(iii) persistent allegations of police brutality and reports which purport to
demonstrate that torture is being utilised by security forces in the country;
(iv)
the fact that various international Human Rights conventions and Treaties
duly ratified by Lesotho are yet to be formally and properly domesticated.
This renders problematic their application in the country which applies
dualism in its legal system;
(v)
prisons conditions are yet to be compliant to international standards as the
Delegation noted issues of overcrowding and unacceptable remand time
(with some inmates having spent more than 7 years on remand);
(vi) the persistence of traditional and religious influences and patriarchy which
hinders efforts to free women and girls from gender prejudices despite the
legal framework and policies put in place to ensure gender equality as well
as the protection of rights of girls and women;
(vii) the high prevalence of the HIV pandemic despite the efforts by the
Government and development partners to combat the disease; and
(viii) the need to accelerate implementation of programmes for the enjoyment of
socio-economic rights by the population particularly in the areas of health,
education and employment;
34. Accordingly, the Commission makes the following key recommendations which
address the main human rights issues in the country:
i.
ii.
iii.
The government and people of Lesotho should unequivocally and
unconditionally engage and participate in the ongoing national
dialogue aiming at forging a new democratic and peaceful era for
Lesotho;
The Government should incorporate the promotion and protection
of human and peoples’ rights in all its actions as well as in the legal,
policy and institutional reforms which would
accompany the
ongoing national dialogue;
The Government should ensure that the Judiciary is independent,
effective and efficient, and establish or strengthen all human rights
9
iv.
v.
vi.
related bodies or institutions to handle allegations of human rights
violations reported to the Delegation;
The Government should immediately release all those under
remand who have exceeded the legal remand time and bring prisons
facilities and conditions up to the acceptable international standards;
The Government should submit its overdue periodic reports, in
accordance with Article 62 of the Charter and Article 26 of the
Protocol to the African Charter on Human and Peoples’ Rights on
the Rights of Women in Africa; and
The international community and international partners should
continue and intensify support to the Government in mobilizing the
necessary human, financial, technical and logistical support for the
ongoing national dialogue on reforms, and continue to support ongoing efforts to ensure human and peoples’ rights promotion and
protection in the country.
10
PART ONE
I.
INTRODUCTION
35. The African Charter on Human and Peoples’ Rights (the African Charter), adopted
on 21 June 1981 by the Assembly of Heads of State and Government in Nairobi,
Kenya, became effective on 21 October 1986. Articles 30 establishes the African
Commission on Human and Peoples’ Rights (the Commission) thereby making it
the main organ of the African Union (AU) for the promotion and protection of
human rights. The Kingdom of Lesotho (Lesotho) is a State Party to the African
Charter, having signed it on 7 March 1984 and ratified the same on 10th February
1992.
36. Under Article 45 of the African Charter, the Commission is mandated to promote
human rights and fundamental freedoms enshrined in the Charter, ensure their
protection and the monitoring of its implementation, interpret its provisions and
provide legal advice at the request of the Assembly of Heads of State and
Government. In addition, the Commission is tasked with collecting documents,
undertaking studies and researching on African problems in the area of human
and
peoples’
rights,
organizing
seminars,
symposia
and
conferences,
disseminating information, encouraging national and local institutions dealing
with human and peoples’ rights and, where appropriate, giving advice or making
recommendations to governments.
37. It is in the context of the implementation of the human rights promotion mandate
of the Commission, that Honourable Yeung Kam John Yeung Sik Yuen (henceforth
Commissioner Yeung); Commissioner in charge of the promotion and protection
of human rights in the Kingdom of Lesotho, and Chairperson of the Commission’s
Working Group on the Rights of Older Persons and Persons with Disabilities in
Africa, undertook a human rights promotion mission in the Lesotho from 8 to 13
October 2018. He was assisted by Mr Bruno Menzan, Legal Officer in charge of
Promotion at the Secretariat of the Commission.
11
38. During the mission, the Commission delegation collected specific information on
the human rights situation in Lesotho, disseminated the conventions of the African
Union and the documents of the Commission as well as all the other relevant
international human rights instruments. The Commission also enhanced its
visibility and raised awareness among all state and non-state stakeholders about
its work and its subsidiary mechanisms.
II.
TERMS OF REFERENCE
39. The objectives of the mission were as follows:
▪
Promote the African Charter and all other international human rights instruments;
▪
Strengthen the collaboration between the Commission and the authorities of the
Kingdom of Lesotho in relation to the promotion and protection of rights
guaranteed under the African Charter as well as under other relevant human
rights instruments;
▪
Engage dialogue with the Government of the Kingdom of Lesotho with regards to
legislatives measures and other measures taken to implement provisions of the
African Charter and other human rights instruments ratified by the Kingdom of
Lesotho;
▪
Exchange views and share experiences with the Government of the Kingdom of
Lesotho, and with other stakeholders working on human rights in the country, on
strategies aiming at improving the enjoyment of human rights;
▪
Raise awareness and visibility of the Commission in Lesotho, especially among
the relevant Government departments and civil society;
▪
Encourage closer collaboration between the Commission and the Government of
Lesotho on the one hand, and between the Commission and CSOs in the country
on the other;
▪
Gather relevant information on the situation of the rights of women, children,
asylum seekers, refugees, migrants, older persons, persons with disabilities and
12
other categories of vulnerable persons living in the Kingdom of Lesotho; and
underscore good practices and positives measures while noting the challenges
encountered in the course of the implementation of provisions of the African
Charter as well as various human rights instruments ratified by the Kingdom of
Lesotho;
▪
Assess the level of enjoyment regarding economic, social and cultural rights of
populations in the Kingdom of Lesotho, as well as measures taken by the
Government to implement this category of human rights;
▪
Gather information on the situation of human rights defenders in the Kingdom of
Lesotho and discuss with all stakeholders the challenges that hamper the effective
enjoyment of human rights by human rights defenders;
▪
Exchange views and gather information on extractive industries, and assess the
impact of extractives industries on the life of populations in the Kingdom of
Lesotho as well as on the environment;
▪
Gather information relative to the issue of HIV/AIDS and the measures as well as
policies put in place by the government of Lesotho to prevent this pandemic; and
to protect human rights of persons living with the virus as well as persons at risk,
vulnerable persons, and persons affected by this disease;
▪
Meet all stakeholders involved
with human rights
and exchange on their
programmes, their assessment of the human rights situation in the Kingdom of
Lesotho and challenges encountered in the course of their activities;
▪
Visit prisons and other detention facilities to apprize the conditions of persons in
custody in the Kingdom of Lesotho;
▪
Visit all other places and establishments that have an impact on the enjoyment of
human rights in the Kingdom of Lesotho;
▪
Follow up on recommendations arising from the Concluding Observations
adopted by the Commission following its examination of Lesotho’s initial Report
submitted in accordance with the latter’s obligations under Article 62 of the
African Charter in 2001;
13
▪
Encourage Lesotho to bring to date its Periodic Reports in accordance with Article
62 of the African Charter; and
▪
Follow up on recommendations made by the Commission in its Report on the
Promotion Mission undertaken from 3rd to 7th September 2012.
III.
THE PROFILE OF THE KINGDOM OF LESOTHO
A. Overview of the historical, geographical, demographic, economic and
international profile of Lesotho
40. The Kingdom of Lesotho is an enclaved country within the border of South Africa.
It covers 30,355 km2 and has a population of around 2,3 million as at 2018. Its
capital and largest city is Maseru.
41. Lesotho was previously the British Crown Colony of Basutoland, but it declared
independence from the United Kingdom on 4 October 1966. It is a member of the
African Union, the United Nations, the Commonwealth of Nations, and the
Southern African Development Community (SADC). The name Lesotho roughly
translates to "the land of the people who speak Sesotho".
42. Lesotho's ethno-linguistic structure consists almost entirely of the Basotho, a
Bantu-speaking people: an estimated 99.7 percent of the people identify as
Basotho. Basotho subgroups include the Bafokeng (totems: phoka (dew), 'mutla
(hare)), Batloung (totem: tlou (elephant)), Baphuthi (totem: phuthi), Bakuena
(totem: kuena (crocodile)), Bataung (totem: tau (lion)), Batšoeneng (totem: tšoene),
and Matebele. The main language, Sesotho, is also the first official and
administrative language, and it is what Basotho speak on an ordinary basis.
43. The population distribution of Lesotho is 25 percent urban and 75 percent rural
and is estimated to be more than 95 percent Christian. Protestants account for 50
percent of the population, (Evangelicals 17.5 percent, Anglicans 7.5 percent,
Pentecostals 21.9 percent and other Christians an additional 8.5 percent). Roman
14
Catholics represent nearly 40 percent of the population and non-Christian
religions represent only 1.5% of the population, and those of no religion 3.5%.
The economy of Lesotho is based on agriculture, livestock, manufacturing and
mining, and depends heavily on inflows of workers' remittances and receipts from
the Southern African Customs Union (SACU). The majority of households subsist
on farming. The formal sector employment consists mainly of female workers in
the apparel sector, male migrant labour, primarily miners from South Africa for
three to nine months, and employment by the Government of Lesotho (GOL). The
western lowlands form the main agricultural zone. Almost 50 percent of the
population earn income through informal crop cultivation or animal husbandry
with nearly two-thirds of the country's income coming from the agricultural
sector. Water and diamonds are other Lesotho's significant resources.
44. The percentage of the population living below USD Purchasing Power Parity
(PPP) US$1.25/day fell from 48 percent to 44 percent between 1995 and 2003. The
country is among the "Low Human Development" countries (rank 160 of 187 on
the Human Development Index as classified by the UNDP, with 48.2 years of life
expectancy at birth. Adult literacy is as high as 82 percent. Among the children
below the age of five years, 20 percent are under weight.
B. Overview of the form of government and administration of Lesotho
45. The Lesotho Government is a parliamentary or constitutional monarchy. The
Prime Minister is head of government and has executive authority. The King of
Lesotho serves a largely ceremonial function; he no longer possesses any executive
authority and is prohibited from actively participating in political initiatives.
46. The National Assembly, the lower house of Parliament is made of 120 members of
which 80 are elected in single member constituencies using the simple majority (or
First-past-the-post) system. The remaining 40 members are elected through
proportional representation and national party-lists. Members serve five-year
terms.
15
47. The upper house of Parliament, called the Senate, is composed of 22 principal
chiefs whose membership is hereditary, and 11 appointees of the king, acting on
the advice of the prime minister
48. The constitution provides for an independent judicial system, made up of the High
Court, the Court of Appeal, Magistrate's Courts, and traditional courts that exist
predominantly in rural areas. All but one of the Justices on the Court of Appeal
are South African jurists. There is no trial by jury; rather, judges make rulings alone
or, in the case of criminal trials, with two other judges as observers.
49. Lesotho is divided into ten districts, each headed by a district administrator. Each
district has a capital known as a camptown. The districts are Berea, Butha-Buthe,
Leribe, Mafeteng, Maseru, Mohale's Hoek, Mokhotlong, Qacha's Nek, Quthing,
Thaba-Tseka. The districts are further subdivided into 80 constituencies, which
consist of 129 local community councils.
50. As far as the relationship of Lesotho legal system with International Law is
concerned, Lesotho is a dualist country with a dual legal system as well, consisting
of customary and general laws operating side by side. Customary law is made up
of the customs of the Basotho, written and codified in the Laws of Lerotholi,
whereas general law consists of Roman Dutch Law imported from the Cape and
the Lesotho statutes. The codification of customary law came about after a council
was appointed in 1903 to advise the British Resident Commissioner on what was
best for the Basotho in terms of laws that would govern them. Until this time, the
Basotho customs and laws were passed down from generation to generation
through oral tradition. The council was then given the task of codifying them,
came up with the Laws of Lerotholi, which are applied by customary courts today
(local courts). Written works of eminent authors have persuasive value in the
courts of Lesotho. These include writings of the old authorities as well as
contemporary writers from similar jurisdictions
16
C. Legal framework for the Promotion and Protection of Human Rights
51. Lesotho is party to the following major human rights instruments:
African legal instruments
•
Constitutive Act of the African Union;
•
African Charter on Human and Peoples' Rights;
•
Protocol to the African Charter on Human and Peoples’ Rights Establishing the
African Court on Human and Peoples’ Rights;
•
OAU Convention Governing the Specific Aspects of Refugee Problems in
Africa;
•
African Charter on the Rights and Welfare of the Child;
•
Protocol to the African Charter on Human and Peoples' Rights on the Rights of
Women in Africa;
•
African Youth Charter;
•
Protocol to the African Charter on Human and Peoples’ Rights on the Rights
of Older Persons
International legal instruments
•
Convention on the Prevention and Punishment of the Crime of Genocide;
•
International Convention on the Elimination of All Forms of Racial
Discrimination;
•
Convention on the Elimination of All Forms of Racial Discrimination;
•
International Covenant on Economic, Social and Cultural Rights;
•
International Covenant on Civil and Political Rights;
•
Convention on the non-applicability of statutory limitations to war crimes and
crimes against humanity;
•
International Convention on the Suppression and Punishment of the Crime of
Apartheid;
•
Convention on the Elimination of All Forms of Discrimination against Women;
•
Convention on the Rights of the Child;
17
•
Optional Protocol to the Convention on the Rights of the Child on the
involvement of children in armed conflict;
•
Optional Protocol to the Convention on the Rights of the Child on the sale of
children, child prostitution and child pornography;
•
Rome Statute;
•
The Geneva Conventions1
•
Convention on the Rights of Persons with Disabilities;
National legal framework for the Promotion and Protection of Human Rights
•
Chapter 2 of the 1993 Constitution of Lesotho as well as a number of other Acts
and policies constitute the legal framework for the promotion and protection
of human rights in Lesotho.
•
Some of the major Acts composing the legal framework for the promotion and
protection of human rights in Lesotho are listed below:
i. Race Relations Act No.9 of 2005
ii. Chieftainship Act 1968
iii. Legal Capacity of Married Persons Act No. 9 of 2006
iv. Penal Code Act No. 30 of 2010
v. Criminal Procedure and Evidence Act No. 9 of 1981
vi. Sexual Offences Act No. 3 of 2003
vii. Children’s Protection and Welfare Act No. 7 of 2011
viii.
Education Act No. 3 of 2010
ix. Speedy Court Trials Act No. 9 of 2002
x. Legal Aid Act
xi. Public Meetings and Processions Act No. 14 of 2010
xii. Public Service Act of 2005
xiii.
Labour Code Order No. 24 of 1992
1 The Four Conventions (Geneva Convention (I) on Wounded and Sick in Armed Forces in the Field;
Geneva Convention (II) on Wounded, Sick and Shipwrecked of Armed Forces at Sea; Geneva Convention
(III) on Prisoners of War; and Geneva Convention (IV) on Civilians) and the Three Additional Protocols.
18
xiv.
Aliens Control Act 1966, Refugee Act 1983
xv. Citizenship Act 1971
xvi.
National Assembly Electoral Act 2011
xvii.
Local Government Elections Act 1998
xviii. Land Act of 2010
xix.
Workmen’s Compensation Act 1977
xx. Public Health Order 1970
xxi.
Environment Act 2008
xxii.
Drugs of Abuse Act 2008
xxiii. Higher Education Act 2004
xxiv. Marriage Act of 1974
xxv.
Internal Security (General) Act 1984
xxvi. Lesotho Defence Force Act 1996
xxvii. Lesotho Mounted Police Service Act 1998
xxviii. National Security Service Act 1998
xxix. Administration of the Judiciary Act of 2011
xxx.
Criminal Procedure and Evidence Act
xxxi. Anti- Trafficking in Persons Act 2011
19
PART TWO
III.
METHODOLOGY AND CONDUCT OF THE MISSION
52. The promotion mission to Lesotho was conducted in the form of interactions and
meetings with the highest authorities and the different stakeholders involved in the
promotion and protection of human rights. The delegation also visited the Prisons.
At each of these meetings and at the visit, the delegation made a brief presentation of
the Commission by outlining its organization, composition, mandate, operations and
subsidiary mechanisms. It further presented the objectives of the mission and
emphasized the sharing of best practices in the areas of interest to the mission.
53. Thus, the human rights situation of Lesotho was deeply discussed with various
stakeholders who shared their views and analysis of the gains, challenges and
prospective developments relative to the prevailing situation.
IV.
MEETINGS HELD BY THE DELEGATION OF THE COMMISSION
1. Ministry of Law, Constitutional Affairs and Human Rights
54. At this meeting, after exchanges of civilities, introductions and welcome remarks
from the Honourable Minister of Law, Constitutional Affairs and Human Rights,
the delegation was briefed by the latter on major trends pertaining to the country’s
human rights situation.
55. Thus, the Minister mentioned the ongoing reform for which the help of the
Commission would be needed, the role of the Human Rights Unit within his
Ministry as which was in charge of ensuring that the country meets its reporting
obligations under various international treaties, the plan to submit before the 63rd
Ordinary Session of the Commission the overdue reports of Lesotho to the
Commission
caused by the limited resources of the country, the ongoing
20
consultations with CSOs in relation to the establishment of a National Human
Rights Institution compliant with the Paris Principles.
56. The Minister assured of the readiness of Lesotho to discuss any human rights issue
with the delegation and added that the delegation would meet various
stakeholders during its mission in order to assess by itself the achievements and
challenges with regard to the human rights situation of the country.
57. Further, the Minister indicated that Lesotho is committed to support the work of
the Commission. He equally noted the invaluable expertise on human rights
issues and wisdom of the Commissioners composing the Commission, which he
has seen first-hand on the occasions of his participation to the Ordinary Sessions
of the Commission.
58. Commissioner Yeung expressed appreciations to the Minister and to authorities
of Lesotho for the effectiveness of the present promotion mission and recalled the
preparatory work, including his meetings with the Minister during previous
Ordinary Sessions of the Commission. He indicated that the first promotion
mission of the Commission to Lesotho took place in 2006 and a second mission
was carried out in 2012 making the present mission to be the third official visit of
the Commission to the country.
59. He also took note of the briefing on the general human rights situation of Lesotho
made by the Minister and applauded particularly the fact that the country is now
poised to submit its overdue reports which the Commission looks forward to
receiving.
60. On the specific question of the NHRI, Commissioner Yeung underscored that
plans of Lesotho to establish one is a positive move as this is provided in the
Constitution of the country and that the effectiveness of human rights in a State
depends a lot on the existence of all Human Rights Institutions. Therefore, the
absence of a NHRI in Lesotho is problematic and its establishment will be very
helpful to achieving effective enjoyment of human rights in Lesotho.
21
61. Commissioner Yeung expressed to the Minister the need for the delegation to have
all sides of the story as far as the human rights situation of the country is concerned
and therefore meetings scheduled must reflect that need and aim of the mission.
He requested that a meeting be scheduled with the opposition parties and
proposed that this could take place just after the meeting with the Speaker.
62. Commissioner Yeung further sought explanation regarding the separation
between the Ministry of Justice, the Ministry of Law and the Attorney General
Office as is the case in Lesotho. He indicated that normally these portfolios are
under a single institution or umbrella and he would be interested in knowing how
are responsibilities are shared amongst these ministries and entities.
63. Measures taken to implement the recommendations of the Report of the
Commission’s mission undertaken in 2012 and explanation on the sacking of the
lady Chief justice in September 2018 were equally issues raised by Commissioner
Yeung with the Minister.
64. Reacting to Commissioner Yeung’s intervention, the Minister reassured that
arrangements will be made to accommodate as much as possible the requests and
issues raised by the delegation and that the opposition parties will be met by the
delegation as requested. Regarding the implementation status of the
recommendations in the Report of the 2012 mission, the Minister advised that
madam Polo Chabane (Chief Legal Officer of the Human Rights Unit within the
Ministry) would address the issue and that the Attorney General is better placed
to provide an explanation relative to the split of portfolios as noted by
Commissioner Yeung as well as on the matter relative to the lady Chief Justice.
65. Madam Polo Chabane, while indicating that other stakeholders will provide
further elements in the course of the planned meetings of the delegation during its
mission gave a report of implementation of the recommendations in the
Concluding Observations on the Initial Report of Lesotho and in the Report of the
2012 mission as follows:
22
•
The Declaration under Article 36 of the Protocol establishing the African Court
on Human and Peoples’ Rights will be considered;
•
The recommendation on death penalty is not implemented as the death penalty
still apply in Lesotho;
•
The overdue reports under Article 62 of the Charter are addressed as the 2nd to
8th Reports and the Initial Report under Maputo Protocol will be submitted to
the Commission before the 63rd Ordinary Session as earlier mentioned by the
Minister;
•
The NHRI will be established and will be Paris Principles compliant;
•
Collaboration with CSOs is a reality and is ongoing, for example the
Government is working with the Federation of the Disabled to have a Bill on
Disability.
66. Addressing the issue of the splitting of portfolios, Mr Tsebang Putsoane, the
Deputy Attorney General explained that this happened due to the workload
involved which was realised after practicing for a while the policy of one Ministry
concentrating all the portfolios mentioned. He indicated that in Lesotho, human
rights issues are under the Constitution and not under justice matters per se and
that is why the Human Rights Unit has been transferred to the Ministry of Law,
Constitutional Affairs and Human Rights. Further, the office of Attorney general
is a constitutional post. He also recalled that previously, the Ministry of Justice
was handling the Attorney General Office and when it was realised that the
position of Minister is political, the said Office has been taken out of the functions
of the Minister. As the Attorney General is the principal legal adviser of the
Government, he/she sits in Cabinet in that capacity.
67. Commissioner Yeung at the end of this meeting, as chairperson of the Working
Group on the Rights of Older Persons and Persons with Disabilities in Africa,
pleaded for Lesotho to be amongst the first fifteen countries to ratify the two
Protocols dealing with these two groups of vulnerable groups which have been
adopted by the African Union after their drafting process was led by the
23
Commission under the technical steering of the Working Group. He indicated that
this would be in line with the Constitution of Lesotho which currently has special
provisions for persons with disabilities.
2. Ministry of Justice and Correctional Service
68. At this meeting, the delegation and Honourable Mokhle Moletsane, the Minister
of Justice, as well as senior officials of the Ministry, including the Commissioner
for Correctional Service, discussed challenges pertaining to the portfolio of the
Ministry and solutions aiming at mitigating the same.
69. With regard to magistrates, it was said that they have made requests pertaining to
their working conditions, their salary and security of tenure. Thus the Government
envisions that they be provided with similar conditions of employment which are
enjoyed by the judges of the High Court who have some security attached to their
status and function. Ways and means are being looked into so that magistrates are
not vulnerable or ingratiated to people or communities which would get them
conflicted in the performance of their judicial duties.
70. With regard to the protection from physical attack during the course of the work
performed by Magistrates, the delegation learnt that only one case of attack
against a magistrate is recorded and that of the 40 magistrates around in the
country, only 4 do not have proper accommodation in Maseru. It was added that
in the districts, magistrates are accommodated in Government houses because
they are given preference on that issue.
71. The delegation was informed that the country counts 12 judges including the Chief
Justice. Also, 2 out of this number of judges are in an acting position due to the
human resource challenge which in turn generates the question of backlog of cases
in the Judiciary. The solution to the backlog of cases is multifaceted and includes
developing a proper case management system, contacting partners to get foreign
judges who will deal with sensitive cases, development of a backlog strategy with
the support of the European Union, etc. The backlog strategy entails amongst
24
others, holding sessions of the courts in districts where backlog of cases has been
identified.
72. The delegation equally was made to understand that judgments of the Lesotho
courts could be executed in South Africa based on bilateral agreements.
73. When the delegation enquired about legal aid in Lesotho, it was told that it exists
as regulated by the Legal Aid Act and is directed to assist those without a certain
level of resources in vindicating or protecting their rights in courts.
74. Concerning detention conditions, it was acknowledged that the infrastructures
and facilities of prisons are old but the Government is committed to uphold the
human rights of its citizens including inmates.
3. Ministry of Mining
75. The Ministry of Mining, honourable Keketo Sello assisted by officials of his
Ministry briefed the delegation on the challenges and mitigating measures in the
work of the sector he is in charge of.
76. These challenges include the fact that mining companies do not often accomplish
what they have promised to communities and the latter demonstrate against this
state of affairs. So, when issues like that erupt, the Minister stated that he holds
meeting with the communities to hear their concerns and try to mediate between
the mining companies and the communities so that promises made by them are
met.
77. However, the Minister noted that some of the mining companies have built
schools and other facilities for some of the communities living in the areas of
mining activities. That is why the Ministry is of the view that though the situation
could be bettered, local communities are benefiting from the mining sector.
78. The Minister informed the delegation that a Mineral and Mining Act is being
drafted whereby amongst other positive moves this would involve, 1% of the
revenues from the resources would go to the local communities where the
exploitation is taking place.
25
79. The delegation was also told that the issue of mining involves the Ministry of
Mining, the Ministry of Environment, the communities and the Mining
companies.
80. The question of child labour related to mining activities was equally mentioned
and it was indicated that efforts are ongoing at the level of the Ministry to handle
the issue.
4. Ministry of Foreign Affairs
45. The meeting at the Ministry of Foreign Affairs was held with the Deputy Minister
Honourable Halebonoe Setsabi who was assisted by Ms Pulane Lechesa.
46. The meeting was an occasion for Commissioner Yeung to express appreciations
from the Commission to the Ministry for its co-facilitation of the mission. He
further advocated for the ratification of the two Protocols relative to Older Persons
and Persons with Disabilities as well as for Lesotho to host one of the ordinary
Sessions of the Commission.
47. The Deputy Minister indicated the openness of Lesotho to look positively into the
issues raised by Commissioner Yeung and stated that with regard to hosting an
Ordinary Session of the Commission, the delegation should be assured that the
country will seriously consider the same.
48. In relation to a query from Commissioner Yeung pertaining to the effective
domestication of international human rights treaties ratified by Lesotho, the
Ministry recognised that there is no systematic domestication stricto sensu of these
treaties post ratification. However, the country has at its disposal various
legislations and policies to implement the international treaties it is party to. This
is the case for instance with the CRPD and the Protocol on Persons with Disabilities
for which a draft Bill is tabled before Parliament.
49. Based on this observation, Commissioner Yeung strongly advised that a thorough
and comprehensive domestication of international human rights treaties ratified
by Lesotho be conducted without delay.
26
5. Ministry of Education and Training
50. Two Deputy Ministers2 and eight technical staff3 participated in the discussions at
the Ministry of Education and Training.
51. Interactions at that meeting focused on achievements and challenges regarding the
implementation of the right to education with particular reference to herd boys or
children shepherds, girls, and children with disabilities.
52. Thus, in relation to achievements, it was noted that since 2000, primary education
is effectively free. The following positive measures were put forward: (i) the right
to education of herd boy is achieved by the literacy programme and the
continuous education programme in place in the country;
(ii) the educational curriculum in Lesotho is divided into three options which are
the artisanal route, the prevocational route and the academic route;
(iii) apart from the fact that there is a specific4 programme within the Ministry
which deals with human rights, human rights education
forms part of the
curriculum starting from grade 1 up to grade 11 and is achieved through some of
the learning areas such as the one called personal and spiritual and social learning
area;
(iv) there exists a system of comprehensive education to tackle pregnancy at
school; and children with disabilities can be enrolled in special schools.
53. On the issue of the education programmes for herd boys, the delegation was
informed of the fact that efforts are made to achieve the efficiency of these
programmes. For instance, from the outset, an enquiry is conducted by officers
from the Ministry of Education to assess the need of establishment of literacy or
learning posts in areas. This is followed by the appointment of administrators to
manage the posts in which books are provided by the Government. There is also
2 Honourable Deputy Minister Ms Maphoka Motoboli and Honourable Deputy Minister Ratsiu Majara.
3 See annex on list of stakeholders met during the mission.
4 The delegation was informed of the fact that the Officer responsible of that programme is indisposed and
could not attend the present meeting. Thus, no further details of that programme was gathered by the
delegation.
27
flexibility in the schedules of tuitions which allow students to attend at their own
pace and timetable. Equally, most courses are done in the evening meaning after
working hours for herd boys. The support of NGOs to these programmes was also
underscored as they do sensitization aiming at getting more attendees to these
programmes.
54. Regarding challenges, officials of the Ministry of Education and Training listed the
below issues mostly rooted in the lack of adequate funding:
•
Primary education made free and compulsory since 2000 is yet to be
compulsory in practice;
•
The lack of facilities to properly implement the right to education
especially in rural areas where dire conditions of learning,
like
overcrowding of classes, long distances between home and schools, bad
weather often prevail.
•
Poverty of parents in towns jeopardizes the right to education of children
in Lesotho as they cannot afford transportation to and from school;
•
HIV-AIDS has taken out of school many children who are the senior ones
in their families and have to care for their younger ones in the absence of
their parents for reasons linked to HIV-AIDS;
•
Poverty has generated the phenomenon of street children who are not able
to attend school and therefore have no access to the right to education;
•
The high rate of pregnancy at school is due to poverty as well as being the
reason for a high number of child marriage;
•
There are only five special schools for children with disabilities which is
insufficient.
•
Technical education providing training on income generating used to be
provided at learning posts but was suspended ten years ago for lack of
funding.
55. Commissioner Yeung had enquired about any data on the implementation of the
right to education by Lesotho and the officials promised to share these later via
28
focal points of the mission at the Ministry of Law. Although no such data was
provided, nonetheless, the draft overdue reports of Lesotho which was shared
with the delegation prior to its departure from Lesotho at the end of the mission
had figures on the right to education which we have used in our findings and
recommendations present promotion mission report under Article 62 of the
Charter. It should be added, however, that amongst the data requested by
Commissioner Yeung, there was specific reference to the percentage of the budget
allocated to education and if that budget was the biggest share of the national
overall budget of the country. It is regretted that no such answer was provided.
6. Ministry of Gender, Youth, Sport and Recreation
56. Various issues were discussed with the Deputy Minister5 in the Ministry assisted
by other senior officials6 and include patriarchy in Lesotho, gender based violence,
transmittal of citizenship by Lesotho women, child labour, child marriage, etc.
57. On patriarchy, officials of the Ministry acknowledged that it exists in the country
and poses a huge challenge to mainstreaming women and girls’ rights.
58. In relation to gender-based violence, the delegation was told that it is prevalent
because of patriarchy which has put women in a lower position compared to men.
There is an Act on Equality in Marriage but a lot in the said law is yet to be
implemented. Thus, the strategy for now is to raise awareness on the law amongst
communities, women, girls and men. Otherwise, it is a fact that the law equalises
the marital status of women and men and gives them respectively equal marital
power. For instance, in a couple where a husband works in mines in South Africa
and the wife is in Lesotho, without equal marital powers, as it was in the past, the
husband would have to travel back home for the purposes of selling cattle, for
example, which income would be utilised to pay for the school fees of the children
5Honourable Rethabile Mokaeane.
6 See list in annex.
29
of that household. Now the wife has full power to enter into a contractual relation
in her own name.
59. For the officials of the Ministry, gender-based violence in the household is usually
met by reprimands and penal measures existing under the general criminal law.
Legislation is being drafted to address the specific case of gender-based violence
in the household. On this, Commissioner Yeung advised that Lesotho make use of
the good practice from Mauritius where Court protection order cater for such
cases.
60. Regarding the passing of citizenship by women in Lesotho, the delegation learnt
that a dual citizenship law was passed in Parliament and would proceed to Senate
but in the meantime, the impossibility for them to pass citizenship to their spouses
and children still exist. However, it is expected that the overall national reform
process will address this issue as well.
61. As for child labour, it was underscored that girls and boys sacrifice to look after
their siblings in case of defaulting parents or caretakers. But, traditionally in
Lesotho, beyond individual cases of personal sacrifice child labour is common and
ordinary. Children in the country are therefore often found working as shepherds,
house helpers, gardeners, mine workers etc. Awareness is being raised on this and
the Ministry of Mines is equally working against child labour.
62. Concerning child marriage, it is also prevalent in the country and sensitization
programmes are being run on all the possible ill consequences which a child
mother may face, as well as school dropouts.
63. Speaking of the programmes at the level of the Ministry aiming at addressing some
of the issues identified above, officials attending the meeting mentioned amongst
others three levels of engagements managed by the Gender Directorate, namely,
the political, social and economic empowerment. They also referred to the 16 days
30
of activism against gender based-violence, the shelter for survivor of gender-based
violence which accommodate children and women victims7.
64. Elaborating further on challenges faced by women and girls in Lesotho, officials
of the Ministry spoke about access to land by women which remains problematic
despite the Land Act of 2010, the inequality in inheritance as this is less accessible
to women than men who are favoured by tradition where it is the eldest boy that
inherits.
65. Officials of the Ministry have further mentioned the issue of LGBTI which is very
sensitive in a Christian society and informed that despite this, it is being taken on
board in the reform process.
66. The delegation was equally informed about plans to move from the 30 percent
quota applying currently in efforts to mainstream gender equality in Lesotho, to a
fifty-fifty principle because percentage of females in the population is 51 and for
males 49.
67. In concluding the discussions, the officials stressed the fact that culture, tradition
and religion are the challenges to the implementation of the programmes,
activities and policies of the Gender Directorate within the Ministry which steers
the gender agenda of the country.
7. Ministry of Home Affairs and Commissioner for Refugees
68. Officials8 of the Ministry of Home Affairs briefed the delegation on the attributions
of their Ministry which up to 2012 used to be called Ministry of Home Affairs,
Public Safety and Parliamentary Affairs. They indicated that the Ministry is
composed of six key departments which are the National Registry, Passport,
Immigration, Refugees, Livestock Registration and National Ceremonies.
7 The shelter, located in Maseru, is called Lapeng Centre and operates with Government and donors
funding.
8 See list in annex
31
69. They equally expressed the view that the Amendment Bill to the Constitution,
which is currently before the Senate will address the discrimination existing in
relation to the non-passing of their Lesotho nationality to their children and
spouses by Lesotho women.
70. They further informed the delegation that birth registration is free of charge unless
after one year from the date of birth and that there is mass registration of births
being conducted for three years from 2017 after a first of such operation conducted
from 2015 was found insufficient to solve the problem of lack of birth certificates
in the population.
71. Also, it was at the Ministry of Home Affairs that the delegation learnt for the first
time during the mission that CSOs are registered at the Ministry of Law.
72. The Commissioner for Refugees9 gave figures and trends pertaining to refugees in
Lesotho. He informed that there are currently 108 refugees and asylum seekers
registered in the country and added that there has not been any single case of
refusal to grant refugees status to any applicants since he has been holding the
position of Commissioner for Refugees for the past ten years. He added that there
is a Refugee Act of 1993 which regulates the issue and that Lesotho applies only
jus sanguinis and not jus solis when it comes to obtaining nationality. As for the
trends on the question of refugees, he noted that there is an increased of number
of refugees from some three refugees entering into the country per year to a much
higher number recently with families of up to twelve individuals mostly from the
DRC coming to seek refuge in Lesotho.
8. Ministry of Health
73. At the Ministry of Health, the major subject discussed with officials10 met was the
HIV-AIDS pandemic in Lesotho as it is of serious concern to the Commission and
9 Mr Mohlolo Lerotholi
10 See list of attendees in annex
32
causes serious negative impact on the general human rights situation of the
country.
74. Thus, the discussions dealt both with positive and negative developments
regarding the work aiming at curbing the pandemic and the general efforts aiming
at a better enjoyment of people in Lesotho of their right to health.
75. Positive developments could be found in the points below:
•
There is a National Health Policy and it was revised in 2017;
•
A principle of free health services is in place;
•
A policy to bring health facilities closer to populations is being
implemented and with special focus on rural areas;
•
A National AIDS Commission is established to deal specifically with the
pandemic and is functional since 2017;
•
The policy as far as AIDS is concerned is “test and treat”;
•
There has been a decrease in HIV-AIDS prevalence due to the ongoing and
coordinated work on the ground, the actual prevalence has dropped up to
25% currently;
•
Antiretrovirals are available and the country does not face shortage of
these medications;
•
Development partners support Lesotho health system and provide
antiretroviral, free testing including self-testing for pregnant women and
their partners, sensitization schemes, education on AIDS, mobile clinics,
male circumcision;
•
Mobile clinics work at night to cater for sex workers, cross border clinics
handle people working in South Africa, and men friendly facilities exist to
encourage men testing;
•
Health facilities owned by the State are equipped with more special
services than what is available in the private sector, for instance, all district
hospitals perform C-section;
33
•
Payment of health services start only from the level of district hospitals
while at the level of health centres, health services are free;
•
In case of emergency, the Ministry of health or medical services do not wait
for payment before attending to older persons and persons with
disabilities or other vulnerable individuals identified as such by the State.
Further, these vulnerable groups are covered by social grants including in
relation to their health conditions as the Ministry of Social development
pays their medical bills.
76. The delegation noted from the discussions the negative developments and
challenges below:
•
There is no national insurance scheme in the country;
•
The high prevalence of HIV-AIDS which is 25% and was said to have
decreased to that figure;
•
Stigma is a reality in relation to HIV-AIDS issues and sexual minorities
who face the problem of accessibility to health services;
•
There is only one doctor/physician for two hundred thousand inhabitants
and the country is targeting meeting one doctor/physician for ten
thousand inhabitants;
•
Lack of accessibility of populations to health facilities is hampering the
enjoyment of the right to health and the struggle to curb HIV-AIDS,
especially in the mountainous areas which are often also the rural parts of
the country;
•
Polygamy is the main reason behind the high prevalence of HIV-AIDS
amongst women because women depends on men and do not have control
on their sexuality to the extent of applying or using the preventive and
protection schemes available in the country to curb the pandemic;
34
9. Ministry of Social Development
77. Officials11 at the Ministry of Social Development, which was established in 2012,
told the delegation that the Ministry was focussing on vulnerable groups,
including older persons, persons with disabilities and children. Thus, the Ministry
has a Policy for Social Development and a Strategy for Social Protection, which
aim at giving effect to rights, guaranteed in the Constitution regarding the said
vulnerable groups.
78. The officials of the Ministry elaborated on the operational aspect of their
intervention and discussed some of the challenges faced in the course of their
mission.
79. Regarding its operations, the Ministry said that it started the development of a
legal framework with the existence of a Children Act, a Disability Bill on the table
of the Parliament, and a Bill on Older persons in the process of being drafted.
Further, the Ministry is building the poverty profile of the country by conducting
a house-to-house enquiry on the issue of poverty. The Ministry equally
implements an economic support in the form of cash grants and this is done on its
own initiative or in coordination with other Ministries. There are about 35 types
of cash grants and cover a range of situations or issues, including old age pension
of 700 Maluti/month for persons of at least 70 years, grant for children received
by families, education assistance, shock response, etc. In support of this economic
intervention, the Ministry implements community development programmes in
order to improve the livelihood of communities.
80. The operational intervention of the Ministry encompasses work done to ensure
that sign language is provided in courts and at the NHRI as well as to make
legislations or its draft available in Braille.
81. The delegation was informed that the Ministry has a Department dealing with
children which ensures that the legal framework applicable to the latter, including
11 See list of stakeholders met during the mission in annex.
35
the various guidelines are respected and implemented by all stakeholders. The
said Department is made of two Units of which one does coordination and fight
to minimise abuse of children while the second one deals with adoption matters.
It is also that Department, which leads campaigns on the rights of children.
82. The challenges that the Ministry identified include the level of poverty in the
country which is said to be the root cause of vulnerability, coupled with the fact
that the economic support available for vulnerable groups is not yet an entitlement
or right but derives from policy. As a result, programmes implemented by the
Ministry do not yet cover all vulnerable groups or types of vulnerability, and the
various amounts of the benefits are not sufficient. Furthermore, the fate of workers
in factories who are prejudiced in their labour rights like the inadequate maternity
leave of six weeks and the difficulties to impose the agreed minimum wage of 2000
Maluti often remain sore and unresolved challenges. In addition, the lack of
homogeneity in the definitions of certain vulnerable groups as they appear in
various legal frameworks do not help in implementing the legislation specifically
aimed at enhancing the conditions of those vulnerable groups.12
83. Officials of the Ministry spoke about plans to update data collected in 2016 on
vulnerable groups by conducting a survey so that the Ministry has at its disposal
reliable data. They finally expressed the need for a proper planning, coordination
and budgeting for which the Government should make considerable efforts as
currently the Ministry is the second or third Ministry having the smallest
budgetary allocation.
12 An example was given with regard to the definition of the child which is not the same in the Children
Protection and Welfare Act and in other legal documents.
36
10. Attorney General
84. The Attorney General Mr Haa Edward Phoofolo discussed the issue of separation
of his Office from the Ministry of Justice, the expectation from the reform process
from the perspective of his Office as well as the sacking of the Chief Justice.
85. In relation to the first issue, he stated that the separation aimed at separating the
Office of the Attorney General from politics so that it is independent and creates
confidence. The separation is entrenched in the Constitution. Thus, the Attorney
General is the representative of the Government in legal proceedings and oversees
the Director of Public Prosecution.
86. With regard to the reform process he welcomes the latter and indicated that it is
an opportunity to improve things which are not totally currently right such in the
Judiciary, the fact that the Office of the Attorney General does not currently have
its own budget, etc.
87. Concerning the sacking of the Chief Justice, he told the delegation that the
suspension is based on an allegation of abuse of power.
88. In the course of other general discussions, the Attorney General drew the attention
of the delegation on a crisis of joblessness in the country which is a challenge for
the enjoyment of human rights.
11. Acting Chief Justice
89. The Acting Chief Justice Lady Maseforo Mahase and the delegation exchanged on
the reform of Lesotho Judiciary as well as on the challenges to be addressed in the
current settings of the justice system of the country.
90. As for the reform, the Acting Chief Justice cited elements listed below:
•
Restructuration of the Judiciary because there is currently confusion
in the structure where only the Chief Justice is on the top of the
structure and the remaining judges are all at the same level;
•
Establishment of a formal Constitutional Court;
37
•
The position of the Chief Justice should be addressed in the reform
and the proposal is that the Chief Justice seats at the apex Court of
the land which would be the Constitutional Court when it comes
existence;
•
The reform should equally address the issue of the Government
recommending the Chief Justice for appointment whereas it was
claimed that it should be the Judicial Services Commission
recommending that appointment;
•
Review of the existing selection process of judges which is not
transparent because positions are not advertised.
•
The Judicial Services Commission which she deems unsatisfactory
as far as its composition is concerned, should include Civil Society
and the Law Society. However, Commissioner Yeung disagreed on
this last proposal and submitted that lawyers appear before judges
and should not be involved in a body such as the Judicial Service
Commission because judges who get the support of lawyers for
their appointment could feel ingratiated to those lawyers whenever
the latter will subsequently appear before them;
•
Reform of the Judiciary should be funded by the Government in
view of the vital nature of the issue and in this vein, there is
currently a proposal of a Judiciary Funding Act.
91. In relation to other challenges faced by the Judiciary, the scarcity of funds and the
trend to reduce its budget over the years by the Government was identified as the
core issue.
The Acting Chief Justice named the backlog13 of cases due to
understaffing, non-computerisation of the system, lacking of basic working tools,
13 The Acting Chief Justice informed the delegation that currently there were still 89 criminal cases which
were yet to be allocated to judges and that an average of 150 cases per year were handled by the High
Court.
38
including cars and concentration of the High Court in one place which needs to be
addressed by decentralising it in at least three places, etc.
92. Further, the Acting Chief Justice spoke about capital punishment which is still in
the books but has not been applied for more than twenty years now even if in 2017
there have been some 3 pronouncements of capital punishment. She also
mentioned overcrowding of prisons.
93. The question of the sacking of the substantive Chief Justice was mentioned with
the Acting Chief Justice who was of the opinion that at the heart of this “fight”
between the Chief Justice and the Government there was a matter of conflict of
interest.
94. To underscore how the Judiciary is in crisis in Lesotho, she drew the attention of
the delegation on the fact that for two years now the Appeal Court has not had
sittings.
12. Deputy Commissioner of Police
95. Commissioner Yeung indicated from the onset that this meeting is very important
due to the trends gathered so far combined with the ToRs of the mission and it
would have been preferable to have the top officials in charge in attendance.14
Nonetheless, he appreciated the fact that the Deputy Commissioner for Police has
stepped in to address the issues of the delegation.
96. Thus, Commissioner Yeung asked about the rivalry between the Police and the
Army, the resulting problem and the possible solutions.
97. Answering to this question, the Deputy Commissioner of Police started by
indicating that the Police is answerable to the Minister of Police and the Army to
the Minister of Defence. Thus, they are independent from each other. He added
that the Army was under the Prime Minister until 2012 and the Police under the
14 The Commissioner for Police who initially confirmed participation to the meeting, happened to excuse
himself for reasons beyond his control at the very last minute and was therefore represented by his Deputy.
39
Ministry of Home Affairs. That has been the state of affairs when the Prime
Minister fled the country twice in 2014 and 2015 during which he stayed in
neighbouring South Africa for more than a year. The two forces are armed 15 and
tend to overpower each other with any means including their weapons when they
are opposed on issues. These might explain the so-called rivalry between the two
corps or forces.
98. Further, the Deputy Commissioner of Police spoke about the framework in which
the Police in line with Meetings and Processions Act of 2010 deals with rallies and
demonstrations. He informed the delegation that except for social events, all other
rallies and demonstrations should be authorised by the Police and a refusal from
the latter could be challenged in courts provided that an appeal is made before the
Minister of Police prior to going to courts. Thus, refusals to grant authorisation for
rallies and demonstrations are often based on security reasons after a case-by-case
analysis by the Police. As for timelines regarding the feedback from the Police on
applications for rallies and demonstrations, the Deputy Commissioner stated that
these are set into the law cited earlier. So, the applicants are expected to apply
three days before the date of the event where there is urgency, while, ordinary
applications should be submitted seven days ahead of the date scheduled for the
event.
99. The deputy Commissioner of Police equally told the delegation that the Criminal
Procedure Act of 1999 regulates police detention which is 48 hours maximum with
an extension possible in case there is a judge’s order. As for the remand period, it
must not in any case exceed 60 days.
100.
Regarding human rights mainstreaming in the work of the Police, the
delegation was informed that human rights education is part of the syllabus of the
Police training. The Human Rights Unit at the Ministry of Law through seminars
and workshops also provides continuous training to officers.
15 The Deputy Commissioner of Police even shown his own pistol he carries always as other police officers
and which he was carrying during the meeting with the delegation.
40
101.
With regard to torture, the delegation learnt that a specific law is to be
adopted. The Police, the Army and the Human Rights Unit were working on the
issue with the approval of the Cabinet.
102.
Finally, the delegation and the attendees to this meeting on the side of the
Police noted that because Lesotho is a dualist State in terms of International Law,
all treaties that the country is party to, should be domesticated before being
implemented.
13. The Senate
103.
The Vice-President of the Senate Mr Tsepo Monethi assisted by the Clerk to
the institution Mr Selete Molete took the delegation through various issues of
interest , including the role of the Senate.
104.
The delegation learnt that the Senate is made of 33 members of which 22
are principal chiefs and His Majesty appoints 11 members on the proposal of the
Prime Minister. It was further said that the Senate is a reviewing Chamber in a
country applying a bicameral Parliamentary system where the National Assembly
is the Lower House and the Senate the Upper House.
105.
Detailing issues relative to the composition of the Senate, Mr Tsepo
Monethi explained that Maseru as the biggest district of the country has five chiefs
and that the next bigger district has two principal chiefs. He added that chiefs are
men but when a chief dies, the wife will take over until the eldest son becomes
chief. This possibility is the reason why there are currently four principal chiefs
who are women making the overall number of women in the Senate eight once the
other appointed female members are counted in.
106.
The discussions on the presence of women in the Senate led Mr Tsepo
Monethi to mention the current division in the Senate with regard to the ongoing
Masupha case and indicated that chieftaincy matters are regulated by traditions
and customs in Lesotho.
41
107.
The Vice-President of the Senate stated that a maximum of 30 days is given
to the Senate to deal with Bills tabled before it. Apart from constitutional matters
for which the double entrenchment necessitating a two-third majority votes is
required, all other Bills could be considered adopted and assented by the Prime
Minister despite any reservation by the Senate.
108.
Addressing the issue of the alleged slow pace or delays in the adoption
by the Parliament of new legal frameworks, the Vice-President of the Senate
affirmed that there is no instance where a backlog of laws will exist at the level of
the institution. This is because a timeframe of 30 days is provided for in the legal
framework governing the work of the National Assembly and the Senate. The real
issue is that certain draft Bills take time at the drafting stage or at the level of
consultation. This is particularly the case when very old laws are to be reviewed
and lengthy consultations are required giving the impression that reform of the
legal framework is delayed by the Parliament.
109.
Officials from the Senate in their response to a question from the delegation
aiming at knowing if the institution is involved in the fulfilment of the reporting
obligations of the country indicated that some challenges exist regarding this
matter and did not elaborate further on the issue.
110.
It was also noted during this meeting that domestication of international
treaties is problematic in the country and that Parliament is not sensitized on the
international legal framework on human rights which has to be domesticated.
111.
At the end of the discussions, Commissioner Yeung reiterated his advocacy
for Lesotho to ratify the Protocols on Older Persons and on Persons with
Disabilities.
42
14. The National Assembly
112.
The delegation and Honourable Sepheri Motanyane, Speaker of the
National Assembly heading other Senior Officials16 of the institution discussed the
working environment of this Lower House of Parliament and related issues.
113.
The delegation was informed that the National Assembly is composed of
120 elected members and that the maximum number of seats a political party could
obtain in the institution is 80 while 30 seats are required from a political party to
become leader of the opposition.
114.
Officials from the National Assembly indicated that the Member of
Parliament Act of 1998 which governs the institution has been declared
unconstitutional.
115.
The delegation was told that the system of proportional representation
currently in place in Lesotho, has emerged as a result of the fact that at a point in
time, the National Assembly was to be one-party National Assembly by default.
116.
Requested to speak about the issue of floor-crossing in Lesotho, officials of
the National Assembly expressed the view that it is a possible practice in the
country as this is not addressed in the Constitution, which is mute about it, is not
otherwise regulated and therefore it is not forbidden
117.
Officials of the National Assembly equally stated that the institution in its
current settings is not independent and needs reform to address issues like its staff
coming from the public service, etc. Thus, it would need a Parliamentary Services
Commission, as it is the case with the Judiciary with its Judicial Services
Commission.
118.
Officials of the National Assembly further indicated that constitutional
reforms are needed and would have to address the reform of the Executive, the
Judiciary and other public institutions as necessary.
16 See annex on list of stakeholders met during the mission.
43
119.
Another issue of concern for officials from the National Assembly is that,
because the position of Permanent Secretary has become political, it has been
changed into Principal Secretary which is has negative impact on continuity and
efficiency in public service.
120.
In relation to the Disability Equity Bill, Commissioner Yeung voiced the
concern of persons with disabilities to officials from the National Assembly who
responded that the said Bill was prepared with 50% contribution and participation
of persons with disabilities.
121.
On the alleged delay in the adoption of the Bill by the Parliament, the
delegation was told that the 10th Parliament is rather doing well regarding passing
on laws as illustrated by the fact that nine Bills have already been passed and that
there is no backlog. The only explanation of such impression is that probably
Ministries in charge of bringing the Bills before Parliament are yet to do so for
reasons they are better placed to explain.
15. The Independent Electoral Commission
122.
This meeting attended by the chairperson of the IEC and other officials of
the institution17 was an occasion for the delegation to be explained the reasons
behind the frequency of elections in the country as illustrated by the three elections
which took place over three consecutive years.
123.
However, prior to addressing the issue above, the IEC officials stated that
the institution is established under Section 66 of the Constitution of the country
and governed by an Act of the National Assembly. It is composed of one
chairperson and two Commissioners.
124.
Addressing the question of the frequency of elections in Lesotho, the IEC
officials expressed the opinion that the proliferation of political parties18 is the
17 See list of attendees in annex
18 The IEC indicated that 34 political parties are registered with it and gathering 500 nominations is part of
the requirements to be registered as a political party.
44
main reason. They explained that as this situation favours crossing from one party
to another in seeking to form a coalition capable of forming a majority
Government, it ends up creating instability equally because the tendency of
crossing from one party to another is not regulated.
125.
On other issues related to their mandate, IEC officials, informed the
delegation that voting in Lesotho is not compulsory, there has been no voting
dispute from the elections they have administered, they work with NGOs to
ensure voters education, effective participation in voting processes and
accessibility to persons with disabilities to voting venues. In addition, the IEC
ensures that in rural areas, no voter travels more than one kilometre to vote.
126.
The IEC regretted the decrease of voters’ turnout throughout elections due
to what is called in Lesotho “voter fatigue”. As an illustration to this fact the IEC
stated that from 86% voters’ turnout at the first elections, in 2017 which was the
latest election organised in the country, the voters’ turnout dropped to 46%.
127.
The IEC has shared with the delegation a document capturing its proposals
regarding the overall reform process ongoing in the country and indicated that it
has been involved in discussions with various stakeholders on the issue.
16. The Office of the Ombudsman
128.
The Ombudsman Advocate Leshele Thoahlane and the Chief Legal Officer
Advocate Matseliso Machai-Ndumo briefed the delegation on the mandate of the
Office of the Ombudsman, its effective work so far and the challenges faced.
129.
The main function of the Office of the Ombudsman which was established
in 1993, is to receive complaints, investigate and make recommendations. The
legislation expects also that the institution to deal with corruption, human rights,
environmental issues etc.; this multifunction is a handicap in the view of the
officials of the body.
45
130.
The Office handles an average of 150 cases per year and its determination
reports are tabled before the Parliament for action (debate) when not complied
with by involved stakeholders.
131.
The Office refers clear cases of corruption to the Police and the Directorate
on Corruption and deals directly with cases alleging discrimination and other
linked misdemeanours.
132.
The delegation was taken through some of the main challenges of the
Office. These include the ceiling of its budget by the Ministry of Law ; financial
constraints results in shortage of staff; non-compliance to its recommendations
which applies to various institutions including the Police and the office of Public
Prosecutor; summons of the Office which have not been complied with have been
submitted to the Police as per law19 without follow-up; the same applies to the
Director of Public Prosecution when seized of these issues; the lack of action (in
the recent years) from the Parliament on reports from the Office regarding noncompliance to its recommendations20; lack of understanding of the role of the
Office of the Ombudsman; the legal framework regulating the mandate of the
Ombudsman creates lot of expectations which the latter cannot meet due to of the
challenges listed above.
133.
The delegation’s attention was drawn on the prevalence of impunity as a
serious challenge to human rights in Lesotho.
134.
A number of recommendations and ideas emerged at the end of this
meeting and aim at improving the situation regarding the role and mandate of the
Office of the Ombudsman. These include giving the possibility to the Office to
prosecute, establishing a NHRI in order to handle parts of the current mandate of
the Office of the Ombudsman, and ensuring that the ongoing reform process does
not exclude reviving of the Office of the Ombudsman.
19 In laws of Lesotho, it is an offence not to comply with summons of the Office of the Ombudsman.
20 It was clarified that this is due to the fact that that no Parliament have lived long enough in the recent
years to allow the Office of the Ombudsman to take issues to it.
46
17. Directorate on Corruption and Economic Offences
135.
From the side of the Directorate on Corruption and Economic Offences, its
Director General, Mr Borotho Matsoso and its Director of Public Education and
Corruption Prevention, Mr Litelu Ramokhoro attended the meeting.
136.
Information gathered at this meeting relates to the operations of the
Directorate and the general situation pertaining to corruption issues in Lesotho.
137.
Thus, established in 2003, the Directorate is currently staffed with 65
officers and is mandated to fight corruption and economic offenses. The scope of
its mandate covers also corruption activities relative to sporting and bribery of
officials. It uses three approaches to deliver its mandate; namely public education,
prevention and investigation.
138.
The Directorate can receive anonymous allegations from people and
handles about 30 cases per annum. It prosecutes under the authority of the
Director of Public Prosecutions and encounters a backlog of cases at the level of
the courts.
139.
The Directorate has entered into a Memorandum of Understanding with
the Police to avoid the recurrence of concurrent investigation of cases by the Police
and itself.
140.
The Directorate conducts education on preventing and combatting
corruption through mass media, seminars, workshops, sensitization campaigns
and has a key activity which is the yearly symposium at which all walks of society
participate. Most importantly, the Directorate has agreed in principle with the
Ministry of Education to include the combatting of corruption in the formal
curriculum of schools.
141.
The delegation was told by the Directorate that in Lesotho, cash
transactions are controlled by the Central Bank and that limitations apply to
money going out of the country but not amounts coming in the country for which
it is upon the receiving institution to satisfy itself of the sources.
47
142.
The delegation learnt further that a new Bill provides protection to whistle-
blowers.
143.
In relation to the level of perception of corruption in the country, the
delegation was referred to rankings made by international institutions and it was
observed that Lesotho appears to be regressing in combatting corruption to the
extent that even the confidence of the public in the Directorate itself has eroded.
144.
The Directorate informed the delegation that it is in the course of
developing a national benchmark on corruption.
18. The Leaders of Opposition
145.
The Leader of the Opposition in the National Assembly, Mr Mathibeli
Mokhothu led stakeholders21 taking part in this meeting.
146.
The opposition leaders stated from the onset of this meeting, that the
mission has come at the right moment due to the current political situation in the
country.
147.
The delegation was then informed of a letter purported to have been sent
to the Commission by leaders of the opposition in Lesotho and which has not yet
been responded to. The letter is said to be about a public statement from the Prime
Minister in which he directed the Police to beat up opposition members.
148.
Leaders of the opposition alleged a prevalence of human rights violations
in the country and blamed the current Government as responsible of these
violations which are mainly made of Police brutality having allegedly led to
sixteen deaths as of now.
149.
The following allegations were made:
•
The Police has a special hit squad which arrests and beats opposition
members;
21 See annex on list of stakeholders met during the mission.
48
•
On the 9th October 2018, Secretaries of the Court of Appeal escaped
arrested by the Police which went after them for allegedly leaking some
documents from a judge;
•
The Prime Minister admitted in Parliament that he ordered extra-judicial
killings;
•
A former Minister of Defence was beaten and assaulted during
interrogation in relation to a case against him; he went into exile after that;
•
A former Commander of Lesotho Defence Force is currently detained for
12 months without trial;
•
A former Deputy Prime Minister has gone into exile for fear of his life and
his benefits are not being paid to him;
•
The Judiciary is under attack by the Government which has suspended the
Chief Justice and there are issues around the appointment of the Acting
Chief Justice;
•
Despite a court ruling on the unquestionable status of the leader of the
opposition, the latter is not given all his benefits and the Government is
being selective about these, for instance, body guards attached to the
leader of opposition are not provided and only one car is made available
to him instead of his entitlement to two cars.
•
The hit squad within the Police which is suspected of arbitrary killings
started from the assassination in 2017 of the wife of the Prime Minister and
till to date no suspect has been arrested for that killing;
150.
Leaders of the opposition indicated that for now they limit themselves to
press conferences and do not yet think it is time to hold demonstrations in reaction
to the deteriorating political environment and the human rights violations they
face.
151.
The delegation was also informed that the opposition is part of the reform
process but has currently suspended its participation to the process in reaction to
the suspension of the Chief Justice. Their condition to come back into the process
49
is the reinstatement of the suspended Chief Justice by the Government and the
President of South Africa who is Facilitator for SADEC has been informed of this.
The latter is said to have informed the opposition that he spoke to the Government
so that the Chief Justice is reinstated.
152.
At the end of the meeting, Commissioner Yeung requested that leaders of
the opposition avail to the delegation a copy of the letter said to have been sent to
the Commission and provide documentation and support elements or evidence of
all the allegations made.22
19. The Faculty of Law of the National University of Lesotho
153.
The delegation had discussions with the Dean of the Faculty of Law,
Professor Kananelo Mosito and Senior Lecturer Dr Itumeleng Shale.
154.
Operations of the Legal Aid Clinic stablished in 2017 within the Faculty of
Law, place of human rights teaching in the curriculum of the Faculty of Law, and
other developments pertaining to the country’s human rights situation were
matters covered in this meeting.
155.
With regard to the Legal Aid Clinic, the delegation was informed that it is
provided for in the curriculum of the Faculty of Law as per its reviewed version
of 1999. However, it was not established due to human resources issues. Therefore,
after completing the recruitment of its staff, tit has started functioning and is
predominantly academic as it is meant for Law students to be trained in consulting
and advising the indigents. The Legal Aid Clinic collaborates with CSOs for
persons with disabilities by being associated to their outreach activities. Further,
under its umbrella, Law students go round educating people on areas identified
by the Legal Aid Clinic. It also takes cases of indigents at courts. The Legal Aid
22 Despite availing the necessary contact details, none of the requested elements were made available to the
delegation by the end of its mission in Lesotho and also nothing has been communicated by leaders of the
opposition by the time of the adoption of this report.
50
Clinic is mostly a teaching tool for last year students who learn under the
supervision of lecturers who are legal practitioners ‘Attorneys and Advocates).
156.
Concerning the curriculum of the Faculty of Law, the delegation was told
that human rights is one of its core subjects and the African Human Rights System
forms an important part of the said curriculum. Thus, focus is made on the
application of the said System apart from equally teaching its theoretical aspects.
The practical application of the theory learnt at the Faculty of Law is achieved by
means of attachment of students from the third year of the LLB which take five
years for completion for a student who does not repeat subjects or years. The
attachment in question is in practicing law firms or other institutions which deal
with Law.
157.
Members of the Faculty of Law spoke about their contribution to the
development of International Human Rights Law in the country and the technical
assistance they provided to the Government in the course of preparing its State
Report. They indicated that through research, advocacy work and interventions in
courts cases, they have changed from 2012 the trend of the justice system in
Lesotho which was resistant to Human Rights Law.
158.
Despite these efforts and positive developments, they identified the lack of
domestication of international human rights treaties ratified by the country as a
key hindering factor to the enjoyment of rights
by the people of Lesotho.
Therefore, they recommended that the ongoing reform process should properly
domesticate the said treaties and make them directly part of the national legal
framework.
20. The United Nations System in Lesotho
159.
Mr. Salvator Niyonzima, the UN Resident Coordinator assisted by his
Advisor on Peace and Development, Mr Clever Nyathi, received the delegation
and before engaging the discussions on the main human rights concerns in
Lesotho which Commissioner Yeung wanted them to focus on, he informed the
51
delegation that the United Nations System in Lesotho is composed of seven
Agencies which are UNDP, WHO, UNICEF, FAO, UNAID, WFP, and IOM.
160.
Addressing the human rights concerns in Lesotho, Mr Niyonzima started
by the overdue reports of Lesotho under the international human rights treaties23
which is due to the lack of capacity at the Human Rights Unit within the Ministry
of Law as that Unit is staffed with only two persons, and to the inexistence of a
permanent mechanism on reporting to treaty bodies as it is only ad hoc committees
formed by Ministries and Agencies which work on the reporting obligations of
Lesotho.
161.
He then pointed out the lack of NHRI on which he elaborated on the
pending debate holding back its effective establishment. That debate relates to the
position or status of the envisioned NHRI and discussions are ongoing between
the Government and Civil Society on the need for that institution to be compliant
to Paris Principles. He indicated that a law on the NHRI was passed but there are
administrative issues around its effective establishment. He further informed the
delegation that the process of establishing a NHRI is being supported by the
UNDP.
162.
Mr Niyonzima also referred the delegation to the assessment of the human
rights situation of Lesotho done by the Agencies of the UN System present in the
country.
163.
The Peace and Development Advisor equally intervened on the issues in
view of the fact that the human rights portfolio within the UN System in Lesotho
falls under his Unit. He spoke about the ongoing reform process in which the UN
System has been involved now for four to five years. In fact, the UN System is
assisting the process at the request of the Government of Lesotho through its Prime
Minister.
23 He noted that Lesotho is party to nine international human rights treaties which is rather positive in
terms of human rights.
52
164.
Thus, the Advisor explained the status of the reform and the way forward.
He indicated that a framework for reform as well as a roadmap were approved by
Cabinet and by SADEC for the political stakeholders to coalesce around a single
document. Then a dialogue will take place and is been planned at the moment of
the present mission. He concluded on this point that it is envisioned that the first
phase of the reform process will be completed early 2019 and a minimum of
stability is needed to achieve the reform.
165.
Elaborating further on the reform process, Mr Niyonzima stated that the
reform is justified by the instability of the country for years now as shown by the
three elections which took place within three years’ span. That situation is due to
the fact that political parties have been unable to gather enough votes to govern
alone and currently, the Government is a four parties one. This environment has
consequential issues like security and safety matters, militarisation of politics and
politicization of the military. For Mr Niyonzima, this context is prejudicial to
human rights, as it has led to loss of lives.
166.
Mr Niyonzima added that other sectors to be reformed include the
Constitution to get rid of the confusion of roles therein, the security sector and the
public sector. He equally underscored that the reform is a long undertaking and
that short term stability is needed for long term stability to be built.
167.
Mr Niyonzima stressed that human rights must be brought into the reform
and mainstreamed at all its layers while ensuring that the overall reform process
is inclusive and participatory so that no one is left behind.
168.
Mr Niyonzima concluded by mentioning opposed views relative to the
reform expressed by opposition political parties which have laid down some
conditions to the reform process.
53
21. Lesotho Law Society
169.
Lesotho Law Society(the Society) was represented at this meeting by three
of the members of its Executive Committee, the Vice-President24 Advocate
Lehlohonolo Matee, the Secretary General Advocate Nthati Pheko and the
Treasurer Attorney Vincent Moshoeshoe Mokaloba.
170.
The discussions touched on the membership of the Society, the situation of
the Judiciary and other developments pertaining to human rights in Lesotho.
171.
Representatives of the Society informed the delegation that its membership
is made of 30 Attorneys and a thousand of Advocates amongst which some are
not practicing lawyers. They indicated that the requirements for both professions
within the membership of the Society date from the colonial era and further
regulated by the Legal Practitioners Act of 1983. So, going by the principles of the
legal framework governing the work of members of the Society, Advocates are not
supposed to consult client as they have to get briefs from Attorneys who are not
supposed to appear in courts. However, this is not the case and both professions
perform any of these two specific tasks as far as the legal practice is concerned in
Lesotho. It was equally said that the membership of the Society is male dominant.
The Society has started offering pro bono services based on that the Legal
Practitioners Act of 1983 which provides for it. The last element communicated to
the delegation in relation to the membership of the Society is that it is a
requirement to hold a Bachelor in Law to enter into legal practice in Lesotho, and
that Advocates do not have to pass the bar exam to become Advocates but
Attorneys have to do so to get their title and this is after certain years of practice
as Advocate.
172.
Regarding the situation of the Judiciary, the delegation learnt that it is in a
dire crisis necessitating urgent intervention in the course of the reform which
should be fast-tracked for various reasons including the challenges within the
24 The President of the Lesotho Law Society was absent with apologies for medical reasons.
54
Judiciary. Thus, issues below have been identified as crippling the effective and
efficient functioning of the Judiciary in a democratic society:
•
Too much interference from the Executive into the Judiciary. In fact, due
to the political instability of the past years, politicians have been
constantly and consistently seeking allies in the Judiciary. The latest
display of such tendency is the suspension of the Chief Justice;
•
The unsettled debate around the seniority between the Chief Justice and
the President of the Court of Appeal. In fact, both claim to be entitled to
the seniority in the architecture of the Judiciary because on one side, the
Chief Justice heads the whole Judiciary per her/his appointment, and on
the other side, the President of the Court of Appeal heads the apex Court
of the land;
•
The backlog in the Court of Appeal and the tendency of any new
Government to systematically change the incumbent President of the
Court of Appeal upon being in charge;
•
The insufficient funding of the Judiciary of which one of the blatant
illustrations is the economic and social vulnerability of magistrates due to
the inadequate package they receive in relation to their function.
173.
The delegation gathered further information during the discussion as
covered in the points listed below:
•
Human Rights are guaranteed in the Constitution but enjoyment of these
by people is not effective due to prolonged detentions, allegations of
torture and other violations. The delegation was advised to meet a civil
society organisation called Transformation Resource Centre to gather
more details of allegations of violations of rights in Lesotho including the
ones mentioned in the course of the present discussions;
•
Allegations about the existence and activities of a hit squad within security
forces is propaganda spread by radio stations as there is no irrebuttable
evidence on its existence as it could have happened under the past regime;
55
•
The NHRI has a legal framework made of the Human Rights Commission
Act of 2016 and the Human Rights Commission Regulation of 2016.
However, the constitutionality of this legal framework is being challenged
in Court and judgment on this is pending. Further, with the said legal
framework of the envisioned NHRI, the latter would not be complaint to
Paris Principles;
•
Legal aid is available in the country and is provided by the faculty of Law
of the National University of Lesotho.
174.
The Society concluded by saying that though actions aimed at
implementing international human rights treaties exist, there still a long way to go
for populations to effectively enjoy all their rights under the said treaties. That is
why the Society is calling for the establishment and effective functioning of the
NHRI which must be compliant to Paris Principles. This will improve the human
rights situation of the country.
22. A Cluster of Civil Society Organisations
175.
The delegation met a cluster of CSOs in the offices of an NGO called
Transformation Resource Centre. Mr Hape Moshabesha, the Executive Director of
that NGO led the group of CSOs represented25 during this meeting with the
delegation.
176.
In his welcoming words Mr Hape Moshabesha expressed appreciation to
the delegation for coming to meet CSOs in their offices unlike it is often the case
of this type of mission during which discussions are held in hotels or other neutral
places.
177.
After his welcoming words Mr Hape Moshabesha, handed over a
document prepared by TRC and which is said to be a brief on the human rights
situation of Lesotho. He then contributed to and moderated a discussion which
took the delegation through an assessment of the country’s achievements and
25 See annexed list of stakeholders met during the mission.
56
challenges with regard to human rights. Various topics have been dealt with in the
course of that exercise and are summarised as below:
➢ Civil and political rights – The protection of these rights are
provided for under the Constitution
➢ Economic, social and cultural rights – Though the Constitution does
not protect enough these rights, the legal framework developed by
the Government caters for the said rights. Some of the elements of
that legal framework are the Water Act of 2010, the Environment
Act, the Mines and Minerals Act of 2019 which ensures ownership
of minerals by Lesotho, the Lesotho Electricity Act, the Road Act
and various other policies.
➢ Children rights – Laws ensuring protection of children exist and
include the Children Protection Act as well as the Education Act.
➢ Enforcement of women rights guaranteed in the Maputo Protocol –
a legal framework exists to that effect and is composed of amongst
others, the Sexual Offences Act, the Equity in Marriage Bill,
Amendment to Election Act in relation to Local Governments
ensures a better participation of women in elections.
➢ Challenges – a number of challenges exist including, Police
brutality and other forms of violations as well as the practice of
torture; democratic institutions are very weak in Lesotho and this
could be illustrated by the inefficiency of the Office of the
Ombudsman as well as of the Police Complaint Authority; the
Judiciary is in crisis due to undue interventions of the Executive in
matters in the exclusive remit of the Judiciary; the independence of
57
the Judiciary is compromised; some courts are not operational; the
Human Rights Commission Act of 2006 is not Paris Principles
compliant; though the Constitution provides for it, public
participation in legislation is lacking and this is due to the
inexistence of a legal specific framework to ensure implementation
of public participation in Governance; There is no legislation on
child marriage and on sexual violence; international corporations
are perpetrating sexual harassment and in relation to workers’
rights, it appears that the Government which should not be
compromised has in reality somehow a weak bargaining power visà-vis these companies as the Government is unable to properly
address human rights violations perpetrated by the said
companies, including their disregard for workers’ rights, torture on
command and sexual harassment ; the country’s reservation made
on CEDAW is a major concern;
➢ Recommendations – CSOs recommended that Lesotho criminalises
torture so that the case of security forces who have the tendency of
extracting information by torture would be addressed; that the
Commission advocates for the operationalisation of the NHRI
which must be Paris Principles compliant; that the Commission
sensitizes the Government to enact the Public Participation Act;
that a decentralisation policy be enacted in line with Local
government Act of 2017; that a law be passed to prevent future
Prime Ministers to appoint judges
➢ Public participation – Lesotho is very rich in diamond and there are
challenges in relation to mining rights. In fact, the Government
extended a lease to a foreign company without engaging the public
58
into the process. This is possible because the Constitution gives too
much power to the Government with regard to issues like this.
Also, the process of the lease is lacking transparency.
➢ National Human Rights Commission – There is a need to obtain a
consensus on the NHRI for it to be a model body.
➢ Separation of powers – The core problem in the country is the flaws
in the separation of powers. The fact is that after her/his
appointment or election by the Parliament, there is no system of
checks and balance for the Prime Minister. This is problematic
when it is the Prime Minister who advises the King on the
appointment of various important senior officials in the country.
➢ LGBTI – The language which is being used in the legal system of
the country is of concern for the rights and protection of LGBTI
because violations against them are perpetrated on the basis of the
said inappropriate or despising language. The level of commitment
of the Government to respond to LGBTI issues is equally of concern.
➢ Reform process – The human rights situation of the country cannot
await the reform process in order to be addressed and it is why the
NHRI is much needed. Its coming in existence would mitigate
issues like the current backlog of 4000 cases in the Judiciary.
➢ Reporting obligations – Lesotho have outstanding reports before
various human rights bodies including the Commission for which
CSOs have heard that a consultant has been hired to assist in
clearing the backlog of reports.
59
➢ CSOs collaboration with the Government and with the Commission
– The collaboration between CSOs and the Government as far as the
assessment of the human rights situation of the country is
concerned is difficult because the versions from both sides are
much divergent due to the fact that the perspectives are different.
Thus, dialogue between CSOs and Government is not easy because
the latter do not often act whenever CSOs take matters to it. This
should be addressed because at the level of CSOs, collaboration is
a reality as illustrated by the existing framework of cooperation
within the Lesotho Council of NGOs
➢ CSOs collaboration with the Commission – CSOs expressed their
belief that it is very difficult to report to the Commission because
they heard that the Government is requested by the Commission to
respond whenever a report is received from CSOs at the
Commission. CSOs further questioned about the modalities and
timelines of their participation in the reporting process.
178.
Commissioner Yeung in reaction to all the information received from CSOs
and some of their queries, indicated that note is well taken of these and the
Commission would address the issues in its recommendations to be part of the
Report of this mission. He equally, elaborated on the framework for the
participation of NGOs to the activities of the Commission including the reporting
process and sharing of information to the Commission by CSOs. He finally urged
CSOs to secure for those who are yet to do so, the observer status with the
Commission to enable them to fully and formally cooperate and collaborate with
the Commission.
60
23. Lesotho National Federation of the Disabled
179.
At the meeting with the representatives26 of the Lesotho National
Federation of the Disabled, the delegation was informed of the fact that the
organisation has never heard of the Commission and this gathering is the first of
its kind with the Commission.
180.
Thus,
Commissioner
Yeung
found
vital
to
properly
brief
the
representatives of LNFOD on the mandate of the Commission and its present
promotion mission to Lesotho as well its previous engagements with the country.
The special mandate of Commissioner Yeung regarding the rights of persons with
disabilities and older persons was equally introduced to participants to this
meeting.
181.
Information received from representatives of LNFOD ranges from its
contribution to the promotion and protection of rights of persons with disabilities
in Lesotho to the challenges faced as well as expectations. The delegation has in
addition received a written brief on all these issues to complement this assessment
of the situation of persons with disabilities in Lesotho.
182.
Thus, LNFOD indicated that it has been advocating for the domestication
of the CRPD which is yet to be done since its ratification by Lesotho in 2008. The
CRPD is therefore not in force in the country as it is a dualist system as far as
International Law is concerned.
183.
LNFOD stated that it has joined the initiative to draft a Disability Bill when
it started in 2013 and despite the fact that this process was very difficult due to the
lack of cooperation from drafters from the side of the Government, the Bill has
been tabled before Parliament and the work of LNFOD at this stage is to advocate
to have a good law.
26 The Executive Director, Advocate Nkhasi Sefuthi and the Advocacy and Human Rights Officer, Advocate
Makatleho Molotsi.
61
184.
The challenges encountered by persons with disabilities in Lesotho were
summarised by LNFOD as the lack of understanding of disability which leads to
issues of absence of policy and legal frameworks relative to employment for
persons with disabilities, rejection by authorities in the draft Bill of the idea of
affirmative action on employment of persons with disabilities, absence of a budget
to support the conducive policy framework, lack of mainstreaming of disability
rights by officials, the absence of a decisive voice of persons with disabilities in
the drafting of the Bill.
185.
The expectations of LNFOD is to have employment and access to justice
better mainstreamed and covered in the Bill which is before the Parliament.
24. Media Institute of Southern Africa and Journalists
186.
This meeting was supposed to gather the delegation, media houses and
media practitioners under the lead of Media Institute of Southern Africa (MISA)
for discussions around the general human rights situation in the country, with a
special focus on rights and freedoms linked to the media sector. However, Mr.
Tsebo Matšasa, the National Director of MISA indicated that invitations were duly
sent to the media houses in relation to this meeting but only one journalist 27 was
in attendance. Mr. Boitumelo Koloi, the chairperson of the National Governing
Council of MISA also participated in the meeting.
187.
Mr Tsebo Matšasa told the delegation that MISA is a membership
organisation and its Lesotho chapter is one of the strongest in the region. It does
policy advocacy, monitors media freedom and build media capacity. He added
that not all media houses in Lesotho are members of MISA and that not all media
practitioners are members as well.
188.
Attendees to the meeting provided information relative to the media
landscape in Lesotho which registers around 150 journalists possessing press cards
27 Mr Khauta Moeqa from People’s Choice FM Radio.
62
issued by the Police through a relatively fair process. They said that 25 radio
stations of which 4 are community based exist in the country; 7 weekly
newspapers amongst which 2 are state-owned, including one of the Police, and 2
others are properties of the churches; only one national television exists; electronic
media is equally present in the country. In addition to these, they told the
delegation that journalists now receive training from the Faculty of
Communication at the Lesotho National University while in the past it was the
Faculty of Humanities which used to have a programme of Mass Communication.
There is also a private institute providing training since 2008. Journalists in
Lesotho do not have a trade union as the one which used to exist has died for
various reasons.
189.
The delegation learnt that there is need to do a legal reform in the media
sector in the context of the overall reform process. Thus, MISA has already hired
a consultant who is reviewing laws to propose an enabling legal framework for
the media. In this vein, a national conference on media reform will be organised
and MISA is in touch with the Ministry of Information in relation to that
conference.
190.
MISA representatives stated that their organisation has been for a long time
advocating for policies and laws creating an enabling environment for the media.
It has also an access to information project through which communities are
assisted in establishing radio stations.28 In relation to monitoring media freedom,
violations, ethics and professionalism, annual reports titled “So this is Democracy”
are issued in both electronic and hard copies and distributed to various
stakeholders in the country and the SADEC Region.
191.
Describing the legal framework of media in Lesotho, attendees to the
meeting stated that laws are still not friendly to access to information and MISA
28 Three radio stations to be established.
63
has been unsuccessfully advocating for 15 years now for the adoption of a law on
Access to Information based on the existing Model Law from the Commission.
192.
Further, they indicated that media is currently very politically polarised
and this is noticeable particularly during electoral processes where partisan media
houses could be clearly identified by the contents of their outlets.
193.
It was brought to the attention of the delegation that there is no regulatory
body for the print media while broadcasting media is regulated by the Lesotho
Communication Authority. As for self-regulation and ethics issues, the delegation
was informed that a code of ethics exists for the broadcast media but not for the
whole media fraternity and that there is no self-regulatory body for the media in
Lesotho.
194.
Speaking on other equally important issues and challenges in the media
sector, attendees to this meeting indicated that though no journalist is imprisoned
at the moment for matters relative to the profession, freedom of the media is
currently very limited due to the legal framework which is draconian. They cited
the Treason Act and the Communication Act of 2012 as examples of such
draconian legislation. With regard to the Communication Act of 2012, it was
mentioned that it gives too much powers to the Minister of Communication.
Attendees to the meeting added on these that the advertising market is fragile and
mainly obtained from the Government which seemingly utilises it to punish media
houses which are deemed to be not favourable to the Government of the day. This
has made the sustainability of media houses problematic and rendered journalist
too vulnerable, as the employment conditions are very poor. The result is that
journalists do not follow the applicable ethics most of the time.
195.
Thus elaborating more on the relationship between the media and the
Government as well as the population, attendees to the meeting stated that the
relationship with the current Government is of a strictly professional nature with
cases of crackdowns by the Government on the media which have witnessed
64
closures and limitations of its coverage areas. For the relationship with the
population, it was said to be generally good as the latter is receptive to the media.
196.
Attendees to the meeting finally expressed their expectation with regard to
the overall ongoing reform process which they say should be an opportunity to
get rid of all legislations unfriendly to the media so that a legal environment
conducive for freedom of expression and freedom of information prevails in
Lesotho.
25. Maseru Senior Women’s Association (MSWA)
197.
The meeting took place at the headquarters of Maseru Senior Women’s
Association (MSWA) which was said to have been provided by the Government.
198.
MSWA was established in 1992 and has since been working on protecting
and promoting the rights of older women and all older persons in Lesotho.
199.
Attendees29 to the meeting stated that their organisation is organising older
persons to have formal associations and has so far established eight of such formal
structures.
200.
The delegation was briefed by attendees to the meeting on older persons’
challenges in the country and gains regarding their rights. It was also the
opportunity to for them to formulate recommendations aiming at improving their
conditions.
201.
The challenges are various and could be summarized as below:
•
There no specific legislation dealing with older persons in Lesotho;
•
Discrimination based on ageing prevails in Lesotho;
•
Attacks on older persons, including extrajudicial killings by burning or
beating is prevalent in the country. The reasons of these attacks are all
linked to their vulnerability as they are accused of practicing witchcraft or
29 See annex 1 list of stakeholders met during the mission.
65
attacked to steal their money or properties. Further, the attacks and abuses
are most of the time perpetrated or facilitated by members of their families.
•
Older persons have become caretakers and guardians of their
grandchildren whose parents have left in search of jobs, this is a burden to
them because they are no more capable of raising children due to their old
age and conditions;
•
The quality of life of older persons in Lesotho is wanting as their mental
and physical health is not properly addressed. This is due to the lack of
memory clinic in the country and absence of specific measures in the health
system to cater for older persons. In addition, health centres are not easily
accessible to older persons due to too long distances and the lack of mobile
clinics which they have requested in vain;
•
There no awareness regarding dementia touching lot of older persons in
Lesotho and there are no statistics on this disease as well despite its
prevalence;
•
There are no houses for older persons in Maseru even though the country
has two institutions of this type; etc.
202.
The gains regarding rights and conditions of older persons in Lesotho
according to attendees to the meeting is the achievement of universal old age
pension which was the result of the work of MSWA.
Recommendations from attendees to the meeting included that the reform
process should make the universal pension for older persons to start at the age of
65 or ideally 60 and no more at 70 as it is currently the case; that sensitization on
the rights of older persons should be intensive and comprehensive so that the
nation respects these rights and older persons who would in turn be able to speak
out.
66
26. Visit of Maseru Central Prison
203.
Maseru Central Prison is the main detention facility of the country located
in Maseru the capital city of Lesotho. It is made of various compartments which
include administrative buildings, cells, a security wing, a block for high profile
detainees, a church, a clinic and a multipurpose facility as well as two blocks under
construction at the time of the visit of the delegation.
204.
The Prison had 64630 inmates on the day of the visit and the delegation was
told it hosts sometimes up to 800 detainees which is an obvious situation of
overcrowding for a facility of a capacity between 500 to 600. Further, on the issue
of overcrowding, the delegation was informed that 15 inmates share cells made to
normally accommodate 10 individuals.
205.
The delegation inspected the facilities and from its observations as well as
its interactions with both inmates and prisons officers, it noted the following:
•
Three meals are provided per day to detainees though some complained
about the quality of their food;
•
In the block hosting high profile detainees, ten cells are available and there
is no separation of remand inmates from convicted prisoners;
•
High profile detainees complained about their treatment compared to their
co-accused who they said are treated more fairly than them as they are
sometimes denied visits;
•
Detainees did not complain about torture in the Prison but stated that cases
of torture have happened while in Police detention;
•
There are delays in courts and many inmates have spent years on remand
with some reaching 7 years of proceedings in courts without a decision on
their cases;
30 See attached document on statistics of the day received from the management of the Prison.
67
•
The male inmate on death row complained of the fact that his appeal is still
pending for 5 years before the Appeal Court and that he has not been
allowed to receive visitors since 5 years;
•
The female inmate on death row also complained of similar delay of her
appeal before the Appeal Court since 2014. Officials at the Prisons indicated
that she is allocated 2 female wardens per days;
•
The water system in the cells is not functional;
•
The maximum-security section had 73 inmates on the day of the visit and
the delegation was informed that its capacity is up to 100 detainees. Also, it
was supposed to host only convicts but currently caters equally for inmates
on remand depending on the seriousness of their case or for security
reasons as determined by the officials of the Prison;
•
Inmates are provided with activities which could be taken into
account
upon completion of their prison sentence as a reintegration mechanism.
These are available at the workshop of the Prison offering tailoring, pottery,
carpentry, welding, shoemaking, etc. Revenues from the workshop is for
now utilised by the Government to finance the skill sharing involved.
However, there are plans to give these revenues to detainees in the context
of their reintegration.
•
The clinic of the Prison has 3 nurses, 3 counsellors, 1 health inspector and
receives visits of doctors once a month. it has a pharmacy with medications
and an ambulance which is utilised for other purposes like by the business
of the management of the Prison due to resources constraints faced. It
consults between 15 and 20 patients daily of which an average of 10 are on
HIV-AIDS care.
•
The management of the Prison and the wardens complained about shortage
of personnel as around 50 more staff are needed to complement the 35031
31 The delegation was informed that out of this number, 20 are females wardens.
68
currently available. They added that their employment conditions have to
be improved to enable efficiency because their salaries are not adequate,
they do not have health insurance and their benefits need to be bettered.
For instance, the Assistant Commander of the Prison complained about not
being allocated a command car which is a critical tool of his duties as far as
efficiency is concerned.
27. Press Conference
206. The delegation of the Commission held a press conference at the end of its
mission to share with the media and the public its initial findings of the promotion
mission conducted in the country form the 8th to the 12th October 2018.
69
PART THREE
OBSERVATIONS AND ANALYSIS OF THE HUMAN RIGHTS SITUATION IN
LESOTHO
207.
The meetings and working sessions held with the stakeholders involved in
the promotion and protection of human rights allowed the Commission to identify
positive developments in the human rights situation of the country. However, the
mission also noted areas of concern.
III.
POSITIVE DEVELOPMENTS IN THE HUMAN RIGHTS SITUATION OF
LESOTHO
208.
The Delegation acknowledges the relative stability which prevails in the
country at the time of its visit. In fact, Lesotho has gone through political turmoil
throughout the past six years that elapsed between the present visit of the
Commission and its last promotion mission in 2012.
209.
The Delegation commends the People of Lesotho, their authorities and
leaders who relentlessly strive to stabilise and reform the country in order to bring
and maintain it on the path of a long-lasting peace and democratic environment.
210.
The Delegation notes with enthusiasm the overall dialogue and reform
process initiated with the support of the Southern African Development
Community (SADC), the African Union and developments partners; including the
United Nations.
211.
•
Further, the Commission notes the following positive developments:
The implementation of some of the previous recommendations of the
Commission; namely:
i.
The authorisation given by Cabinet to the Army, the Police and the
Human Rights Unit within the Ministry of Law and Constitutional
Affairs to work on a legislation criminalising torture;
70
ii.
iii.
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
The submission of a disability bill to the Parliament;
The submission to the Parliament of a Bill to amend the
Constitution to ensure that the present discrimination against
women in relation to their inability to pass their citizenship to their
spouses and children ceases (the Eight Amendment Bill to the
Constitution);
iv.
The passing of the Equality in Marriage Act;
v.
Continuous and intensive efforts to combat the HIV pandemic,
including the establishment in 2017 and operationalisation of the
National AIDS Commission; and
vi.
The development of literacy programmes to ensure child herders
have access to education.
The commitment to submit all its overdue reports to the Commission in October
2018;
The ongoing efforts towards the establishment of a national human rights
institution for the protection and promotion of human rights;
Creation of a Human Rights Unit within his Ministry in charge of ensuring that
the country meets its reporting obligations under various international treaties;
Collaboration with CSOs is a reality and is ongoing, for example the Government
is working with the Federation of the Disabled to have a Bill on Disability;
development of a backlog strategy with the support of the European Union, etc.
The backlog strategy entails amongst others, holding sessions of the courts in
districts where backlog of cases has been identified;
existence of legal aid;
a Mineral and Mining Act is being drafted whereby, amongst other positive
moves , 1% of the revenues from the resources would go to the local communities
where the exploitation is taking place;
existence of a Children Act, a Disability Bill on the table of the Parliament, and a
Bill on Older persons to be drafted;
primary education is effectively free since 2000;
the right to education of herd boys is achieved by the literacy programme and the
continuous education programme in place in the country;
Existence of human rights education in the academic curriculums of the country;
existence of a system of comprehensive education to tackle pregnancy at school;
Children with disabilities can be enrolled in special schools;
There is an Act on Equality in Marriage;
Meetings and Processions Act of 2010 which allows people to enjoy they rights to
assemble and protest;
71
•
the Water Act of 2010, the Environment Act, the Mines and Minerals Act of 2019
which ensures ownership of minerals by Lesotho, the Lesotho Electricity Act, the
Road Act which create a number of positive policies;
•
the Children Protection Act as well as the Education Act;
•
the Sexual Offences Act, the Equity in Marriage Bill, Amendment to Election Act
in relation to Local Governments
•
a dual citizenship law was passed in Parliament and would proceed to Senate;
•
mass registration of births is being conducted for three years from 2017;
•
Existence of a Refuge Act of 1993 and a Commissioner for Refugees to deal with
Refugees issues
•
Plans to move from the 30 per cent quota applying currently in efforts to
mainstream gender equality in Lesotho, to a fifty-fifty principle because
percentage of females in the population is 51 and for males 49;
•
the achievement of universal old age pension
•
a code of ethics exists for the broadcast media;
•
The revision of the National Health Policy in 2017;
•
A principle of free health services is in place;
•
A policy to bring health facilities closer to populations is being implemented and
with special focus on rural areas;
•
A National AIDS Commission is established to deal specifically with the
pandemic and is functional since 2017;
•
The policy as far as AIDS is concerned is “test and treat”;
•
There has been a decrease in HIV-AIDS prevalence due to the ongoing and
coordinated work on the ground, the actual prevalence has dropped up to 25%
currently;
•
Antiretroviral are available and the country does not face shortage of these
medications;
72
•
Development partners support Lesotho health system and provide antiretroviral,
free testing including self-testing for pregnant women and their partners,
sensitization schemes, education on AIDS, mobile clinics, male circumcision;
•
Mobile clinics work at night to cater for sex workers, cross border clinics handle
people working in South Africa, and men friendly facilities exist to encourage men
testing;
•
Health facilities owned by the State are equipped with more special services than
what is available in the private sector, for instance, all district hospitals perform
C-section;
•
Payment of health services start only from the level of district hospitals while at
the level of health centres, health services are free;
•
In case of emergency, the Ministry of health or medical services do not wait for
payment before attending to older persons and persons with disabilities or other
vulnerable individuals identified as such by the State.
•
Vulnerable groups are covered by social grants including on health aspects as the
Ministry of Social development pays their medical bills
•
Existence of about 35 cash grants which cover a range of situations or issues,
including old age pension of 700 Maluti/month for persons of at least 70 years,
grant for children received by families, education assistance, etc;
•
Existence of community development programmes implemented by the Ministry
of Social Development in order to improve the livelihood of communities;
•
sign language is provided in courts;
•
work is ongoing to ensure that some legislations or draft Bills are made available
in Braille whenever possible;
•
refusal by the Police to grant authorisation for demonstration upon an application
could be challenged in courts;
•
the Criminal Procedure Act of 1999 regulates police detention which is 48 hours
maximum with an extension possible only from an a judge’s order. As for the
remand period, it must not in any case exceed 60 days;
73
•
human rights is part of the syllabus of the Police training and well as that
continuous training is provided to officers by the Human Rights Unit at the
Ministry of Law through seminars and workshops
•
Police officers stand to be made accountable for their human rights violations;
•
journalists now receive training from the Faculty of Communication at the
Lesotho National University
IV.
AREAS OF CONCERN
212.
In spite of the progress identified, the delegation of the Commission has
come across certain challenges which inhibit the full realisation and enjoyment of
human rights; namely:
a. With regard to the political situation and the national dialogue and reform
process, the Delegation is highly concerned that the political parties from
the opposition have suspended their participation to the process;
b. It is further deeply concerned that the political environment has brought
about issues like security and safety, militarisation of politics and
politicization of the military which is prejudicial to human rights and has
led to loss of lives
c. The Delegation equally notes with concern the constitutional crisis caused
by the conflicted relationship between the Judiciary and the Executive
which has a negative impact on the smooth functioning of institutions in a
democratic society;
d. The Delegation is further concerned by persistent allegations of police
brutality and reports which purport to demonstrate that torture is being
utilised by security forces in the country;
e. Various international Human Rights Conventions and Treaties duly
ratified by Lesotho are yet to be formally and properly domesticated; this
renders problematic their application in the country which applies dualism
in its legal system;
74
f. Lesotho owes overdue reports to the Commission which has to do with
because of the reported limited resources of the country and the inexistence
of a permanent mechanism on reporting to treaty bodies;
g. The overdue delay in adopting critical legal frameworks aiming at giving
effect to international obligations of Lesotho and particularly some relative
to the core recommendations made to Lesotho by the Commission;
h. The opinion expressed in many quarters that there is a lack of consultative
process in matters pertaining to the carrying out of public affairs on matters
of public interest in order to ensure ownership and minimum national
consensus;
i. The reported rivalry between the Police and the Military;
j.
Challenges in the administration of justice including inadequate number of
judicial personnel, poor conditions of service and the backlog of cases;
k. Prisons conditions are yet to be compliant with international standards as
the Delegation noted issues of overcrowding and unacceptable remand
time (with some inmates having spent more than 7 years on remand);
l. The persistence of traditional and religious influences and patriarchy which
hinders efforts to free women and girls from gender prejudices despite the
legal framework and policies put in place to ensure gender equality as well
as the protection of rights of girls and women;
m. The low representation of women in decision making positions;
n. The level of poverty of the country is said to be the root cause of
vulnerability
o. a serious crisis of joblessness in the country which is a source of various
challenges as far as human rights are concerned
p. domestication of international treaties is problematic in the country and
that Parliament is not sensitized on the international legal framework on
human rights which has to be domesticated;
75
q. Member of Parliament Act of 1998 which governs the institution has been
declared unconstitutional;
r. the issue of floor-crossing in Lesotho;
s. though the Constitution provides for it, public participation in legislation is
lacking and this is due to the inexistence of a legal specific framework to
ensure implementation of public participation in Governance;
t. inexistence of specific legislation on child marriage ;
u. the country’s reservation32 made on CEDAW is a major concern
v. existence and prevalence of gender-based violence;
w. the prevalence of impunity is a serious challenge to human rights in
Lesotho;
x. Numerous complaints from the opposition on police brutality and other
human rights violation including intimidations and other unfair practices
from the state apparatus aiming at preventing the opposition to play its
critical role in the political arena of the country
y. the death penalty still applies in Lesotho;
z. Challenges facing the Judiciary including insufficient staffing and funds as
well as poor working conditions of personnel in the system and backlog of
cases; non-computerisation of the system, lacking of basic working tools
like cars and others, concentration of the High Court in one place which
needs to be addressed by decentralising it in at least three regional places,
the Office of the Attorney General does not currently have its own budget;
aa. for two years now the Appeal Court the apex judicial body of the country
has not had sittings
bb. There is overcrowding of prisons and the infrastructures and facilities of
prisons are old;
32 “The Government of the Kingdom of Lesotho declares that it does not consider itself bound by article 2
to the extent that it conflicts with Lesotho’s constitutional stipulations relative to succession to the throne
of the Kingdom of Lesotho and the law relating to succession to chieftainship”
76
cc. delays in courts resulting in inmates spending years on remand with some
reaching 7 years after Court proceedings without a decision delivered on
their cases
dd. challenges in the mining sector including the fact that mining companies
do not often accomplish what they have promised to communities and the
inaction of the government to take them to task;
ee. the existence of child labour in the mining sector;
ff. Primary education made free and compulsory since 2000 is yet to be
effective in practice;
gg. The lack of facilities to properly implement the right to education in rural
areas like overcrowding of classes, long walking distances between home
and schools, etc.
hh. Poverty of parents jeopardizes the rights to education of children in Lesotho
as they cannot afford transportation to school and from school;
ii. HIV-AIDS has taken out of school many children who are the senior ones
in their families and have to care for their younger siblings in the absence
of their parents for reasons linked to HIV-AIDS;
jj. Poverty has generated the phenomenon of street children who do not
attend school and therefore have no access to the right to education;
kk. The high rate of pregnancy at school is due to poverty and promotes child
marriage;
ll. There are only five special schools for children with disabilities, which is
insufficient.
mm.
Technical education providing training on income generating used
to be provided at learning posts but was suspended ten years ago for lack
of funding;
nn. the passing of citizenship by women to their spouses and children in
Lesotho is still impossible pending the adoption of the dual citizenship law;
oo. prevalence of child labour based on cultural and social codes;
77
pp. child marriage is prevalent in the country and has serious consequences like
diseases and school dropouts for girls;
qq. access to land by women remains problematic despite the Land Act of 2010,
the traditional inequality in inheritance which favours the first boy;
rr. the issue of LGBTI which is very sensitive in a Christian society;
ss. There is no national insurance scheme in the country;
tt. The high prevalence of HIV-AIDS which is presently 25% and was said to
have decreased to that figure;
uu. Stigma is a reality in relation to HIV-AIDS issues and sexual minorities who
face the problem of accessibility to health services;
vv. There is only one doctor/physician for two hundred thousand habitants
and the country is targeting meeting one doctor/physician for ten thousand
habitants;
ww.
Accessibility of populations to health facilities is hampering the
enjoyment of the right to health and the struggle to curb HIV-AIDS,
especially in the mountainous areas which are often also the rural parts of
the country;
xx. Polygamy is the main reason behind the high prevalence of HIV-AIDS
amongst women because women depends on men and do not have control
on their sexuality to the extent of applying or using the preventive and
protection schemes available in the country to curb the pandemic;
yy. the various existing social benefits are not sufficient,
zz. the fate of workers in factories who are prejudiced in their labour rights like
the inadequate maternity leave of six weeks, the difficulties to impose the
agreed minimum wage of 2000 Maluti,
aaa.
the existence of contradicting legal framework governing some
vulnerable groups, for instance, with regard to the definition of the child
which is not the same in the Children Protection and Welfare Act and in
other legal documents;
78
bbb.
inexistence of a specific law on torture
ccc.
the ceiling of its budget by the Ministry of Law even if this is
prepared and presented by itself;
ddd.
financial constraints at the Office of the Ombudsman resulting in
shortage of staff; non-compliance to its recommendations and this applies
to various institutions including the Police and the Public Prosecutor;
eee.
summons issued by the Office of the Ombudsman which have not
been complied and the non-participation of the as well as the Director of
Public Prosecution when seized with requests to ensure compliance; the
lack of action (in the recent years) from the Parliament on reports from the
Office
of
the
Ombudsman
regarding
non-compliance
to
its
recommendations;
fff. lack of understanding of the role of the Office of the Ombudsman; the legal
framework regulating the mandate of the Ombudsman creates lot of
expectations which the latter cannot meet due to some of the challenges
listed above
ggg.
the lack of understanding of disability which leads to issues of
absence of policy and legal frameworks relative to employment for persons
with disabilities, rejection by authorities in the draft Bill of the idea of
affirmative action on employment of persons with disabilities, absence of a
budget to support the conducive policy framework, lack of mainstreaming
of disability rights by officials, the absence of a decisive voice of persons
with disabilities in the drafting of the Bill;
hhh.
There no specific legislation dealing with older persons in Lesotho;
iii. Discrimination based on ageing prevails in Lesotho;
jjj. Attacks on older persons, including extrajudicial killings by burning or
beating is prevalent in the country. The reasons of these attacks are all
linked to their vulnerability as they are accused of practicing witchcraft or
79
attacked to steal their money or properties. Further, the attacks and abuses
are most of the time perpetrated or facilitated by members of their families.
kkk.
Older persons have become caretakers and guardians of their
grandchildren whose parents have left in search of jobs, this is a burden to
them because they are no more capable of raising children due to their old
age and conditions;
lll. The quality of life of older persons in Lesotho is wanting as their mental
and physical health is not properly addressed. This is due to the lack of
memory clinic in the country and absence of specific measures in the health
system to cater for older persons. In addition, health centres are not easily
accessible to older persons due to too long distances and the lack of mobile
clinics which they have requested in vain;
mmm.
There is no awareness regarding dementia touching lot of older
persons in Lesotho and there are no statistics on this disease as well despite
its prevalence;
nnn.
There are no old people’s home for older persons in Maseru even
though the country has two institutions of this type;
ooo.
Journalists in Lesotho do not have a trade union;
ppp.
laws are still not friendly to access to information;
qqq.
inexistence of a Law on Access to Information;
rrr. lack of a code of ethics for the whole media fraternity
sss.
the media is politically polarised and this is noticeable particularly
during electoral processes where partisan media houses could be clearly
identified by the contents of their outlets
ttt. no regulatory body for the print media;
uuu.
no self-regulatory body for the media in Lesotho;
vvv.
attempt at muzzling down media sharing/promoting opposition’s
views by resorting to draconian legal framework like the Treason Act and
the Communication Act of 2012. With regard to the Communication Act of
80
2012, it was mentioned that it gives too much powers to the Minister of
Communication;
www.
The advertising market is fragile and mainly obtained from the
Government which seemingly utilises it to punish media houses which are
deemed to be unfavourable to the Government of the day. This has made
the sustainability of media houses problematic and rendered journalists too
vulnerable, as the employment conditions are very poor. The result is that
journalists do not follow the applicable ethics most of the time.
81
PART FOUR: RECOMMENDATIONS
213. Following the mission and taking into account the challenges identified, the
Commission is of the view that the People of Lesotho and their leaders should
unequivocally and unconditionally engage and participate in the ongoing national
dialogue aiming at forging a new democratic and peaceful aura for Lesotho.
214. The Commission equally recommends that all stakeholders should also exercise
the necessary restraint in their actions and deeds in order to avoid any polarisation of
the political environment to the extent of creating security risks, including the loss of
lives and other serious human rights violations.
215. The Commission urges all stakeholders to work on reducing the negative impact
of patriarchy, traditional and religious influences on the enjoyment of human rights
in the country.
216. The commission further makes the recommendations below:
•
To the Government:
Legal reforms and participation
i.
The Government should incorporate the promotion and protection of human and
peoples’ rights in all its actions as well as in the legal, policy and institutional reforms
which would be initiated as a result of the ongoing national dialogue;
ii.
The Government should accelerate all processes relative to the adoption of critical legal
frameworks in line with Lesotho international obligation with specific attention to those
recommended by the Commission in its conclusions from the previous promotion
mission to the country;
iii.
Establish an environment and framework conducive to public participation in public
affairs in order to ensure ownership and minimum national consensus around issues of
public interest;
iv.
Review the Member of Parliament Act of 1998 which has been declared unconstitutional
for it to be in conformity with the supreme law of the country;
82
Security Sector
v.
Embark on reforms aiming at the transformation of security forces (Police and Army)
into republican forces not paying allegiance to individuals or political forces but
serving only the legitimate interest of the Sate and the People of Lesotho;
vi.
Investigate all allegations of human rights violations involving the security sector and
publish the outcome of all investigations;
vii.
Introduce regular human rights training of personnel at all levels;
Judiciary
viii.
Undertake the necessary consultations and measures to resolve the constitutional
crisis between the Judiciary and the Executive;
ix.
Restructuration of the Judiciary to deal with the current confusion in the structure
where only the Chief Justice is on the top of the structure and the remaining judges
are all at the same level;
x.
Establishment of a formal Constitutional Court;
xi.
Ensure in the reform of the Judiciary that the Chief Justice sits at the apex Court of the
land which would be the Constitutional Court when it comes to be in formal existence;
xii.
The reform should ensure that the Chief Justice is recommended for appointment by
the Judicial Services Commission and not the Government;
xiii.
Review of the existing selection process of judges which is not transparent because
positions are not advertised;
xiv.
Equip the Judiciary with the adequate staffing and address the backlog of cases;
xv.
Guarantee the independence of the judiciary , and increase its resources for efficient
and effective justice service delivery;
xvi.
Ensure that the cases of all detainees whose trials and appeals are pending will be
promptly heard and their rights to fair trial are respected;
xvii.
Ensure that the Judiciary plays its role as far as combatting impunity is concerned;
83
Death Penalty
xviii.
Remove death penalty from the statutes and continue the moratorium on the
application of the death penalty while commuting death sentences into life
imprisonment;
Prevention of Torture
xix.
Conduct systematic investigation on each allegation of Police brutality and the
practice of torture;
xx.
Take steps to criminalise torture in the penal code of the country;
xxi.
Implement fully the Guidelines and Measures for the Prohibition and Prevention of
Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa (Robben
Island Guidelines)
Prisons
xxii.
Immediately release all those on remand in detention centres who have exceeded the
legal remand time;
xxiii.
Mainstream human rights in the training of prisons personnel by developing the
available vocational training and providing equipment and materials in prison;
xxiv.
Ensure that prisons infrastructure meets minimum international standards on
detention and in particular to address overcrowding by namely completing the
construction of unfinished buildings;
xxv.
Improve on the sanitary provision and condition relating to the detainees;
xxvi.
Improve on the working condition and facilities of all personnel in the prison service;
xxvii.
Adopt measures to ensure that all detainees have regular communication with their
families and facilitate regular access to the prisons by NGOs and CSOs;
xxviii.
Abide by standards and Principles relative to prisons and detention centres which are
laid down in the Guidelines and Measures for the Prohibition and Prevention of
Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa (Robben
Island Guidelines);
84
National Human Rights Institution
xxix.
Establish and operationalise a Paris Principles compliant NHRI;
xxx.
Provide the necessary resources for the effective and efficient operations of the
Commission;
xxxi.
Work with the Commission to develop a national human rights action plan;
The Office of the Ombudsman
xxxii.
Raise more awareness of the role of the Office of the Ombudsman;
xxxiii.
Allocate the necessary resources to the Office for its effective and efficient functioning;
xxxiv.
Sensitize the Police and the Director of Public Prosecutions in order for these
institutions to collaborate effectively with the Office of the Ombudsman;
xxxv.
Enable the Office of the Ombudsman to prosecute
Freedom of Expression and Access to Information
xxxvi.
Enact a law on access to information;
xxxvii.
review the legal framework for freedom of expression and access to information
which is unfriendly and draconian to these rights, namely, review the
Communication Act of 2012 to ensure that the powers given to the Minister of
Communication is properly balanced in the interest of the rights to freedom of
expression and access to information;
xxxviii.
Ensure that the media sector and media landscape include key elements like trade
unions, code of ethics, regulatory bodies, etc.
xxxix.
Ensure that advertising market is fair and not utilised by government to punish
outlets deemed not favourable to its governance;
xl.
Improve working conditions and employment conditions in the media sector;
xli.
work toward establishing professionalism in the media sector in order to avoid
subjective polarisation which is detrimental to peace and stability as well as to human
rights
Youth
85
xlii.
Increase employment opportunities for the youth through, training, establishment of
job centres to assist youth to secure employment;
xliii.
Implement policies towards development of the economy that will cater for
employment and support entrepreneurship among the youth;
xliv.
Support establishment of small and medium enterprises through incentives;
xlv.
Ensure the inclusion of youth in decision making processes;
Women
xlvi.
Reverse/withdraw the reservation made on CEDAW;
xlvii.
Ensure that the reform gives to women the right to pass their nationality to their
spouses and children on an equal basis with men;
xlviii.
Enact a law to provide for 50 percent quota for women in all decision making
positions;
xlix.
Embark on sensitization, civic education and provide incentives for women to take
up leadership roles and to contest for public offices;
l.
Reform electoral laws, systems and regulations for political parties to remove barriers
which women face when vying for elected offices;
li.
Increase efforts, enact legal frameworks and implement the policies or legal avenues
against child marriage and gender based violence and conduct awareness raising
programs in local languages;
lii.
Review land tenure laws and systems to increase women's ownership and access to
land;
liii.
Increase economic activities of women and ensure they have access to finance to
support their livelihood activities;
liv.
Ensure that maternity leave covers an adequate period;
Persons with Disabilities and Older persons
86
lv.
Domesticate the Protocol to the African Charter on Human and Peoples’ Rights on the
Rights of Older Persons;
lvi.
Ratify and domesticate the Protocol to the African Charter on Human and Peoples’
Rights on the Rights of Persons with Disabilities;
lvii.
Intensify a comprehensive sensitization of authorities and the population on issues of
disability and older persons so that the nation respects these rights;
lviii.
Ensure that the disability bill which is to be enacted complies with the standards set
in the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of
Persons with Disabilities;
lix.
Enact a law on older persons which is line with the Protocol to the African Charter on
Human and Peoples’ Rights on the Rights of Older Persons;
lx.
Protect older persons from discrimination and violence;
lxi.
Ensure the provision of more facilities to cater for the needs of older persons and
embark on awareness raising programs in relation to how to mainstream the rights of
older persons and persons with disabilities, and specifically address the issue of
dementia which is prevalent amongst older persons;
lxii.
Ensure that the universal pension for older persons starts at the age of 65 or ideally
60; and no more at 70 as it is currently the case;
Children
lxiii.
Continue and strengthen programmes and policies in place which aim at ensuring
that children receive the special attention they need, namely with regard to education,
health and protection against harmful traditional practices or some other issues like
child labour, stress children which are all mainly due to poverty and detrimental to
their rights;
Economic, Social & Cultural Rights
87
lxiv.
Ensure that primary education made free and compulsory since 2000 is effectively
rendered compulsory in practice;
lxv.
Strengthen university infrastructure and other educational institutions and
programmes to enable these to provide quality and affordable services;
lxvi.
Address the shortcoming in the social security schemes which exist and ensure
universal coverage at least for the most vulnerable groups;
lxvii.
Equip workers with the necessary skills and legal frameworks to defend their labour
rights;
HIV/AIDS
lxviii.
Continue and strengthen efforts in the prevention and combat against HIV;
lxix.
To combat stigma comprehensively as it is a factor hindering seriously the effort in
controlling HIV in Lesotho;
Extractive Industries
lxx.
Continue efforts aiming at ensuring that mining companies keep their promises to
local communities;
lxxi.
Further efforts aiming at combatting child labour in the mining sector;
lxxii.
Finalize the ongoing development of better legal and policy frameworks for the
mining sector and ensure transparency of the sector by publishing the revenues it
generates
Ratification and domestication of international human rights instruments
lxxiii.
Ratify regional and international instruments on human rights which have not yet
been ratified and take steps to conduct a throughout and systematic domestication of
all regional and international human rights instruments that have been ratified.
Cooperation with the Commission
88
lxxiv.
Submit its overdue periodic reports, in accordance with Article 62 of the Charter and
Article 26 of the Protocol to the African Charter on Human and Peoples’ Rights on the
Rights of Women in Africa;
lxxv.
Establish a permanent mechanism in charge of ensuring that reporting obligations of
Lesotho to treaty bodies are met;
lxxvi.
Utilise all available means, including international cooperation and expertise to deal
with the limited resource available as far as reporting to treaty bodies is concerned;
•
lxxvii.
To civil society:
Conduct sensitization for all groups within the population to enable them to be aware
of their fundamental rights and claim them whenever need be;
lxxviii.
Work on addressing stigma associated to HIV and disability;
lxxix.
Engage constructively the Government and the relevant stakeholders in order to
participate in all reforms and maintain the collaborative relationship which should
exist between keys players as far as the promotion and protection of human rights is
concerned;
lxxx.
For those who have not done so, take the necessary measures to obtain the observer
status at the Commission, and for NGOs with the said status, comply with the rights
and obligations arising therefrom, namely submit their activity report to the
Commission in conformity to its Resolution on Observer Status;
•
lxxxi.
To the International Community and Partners:
The international community and international partners should support the
Government in mobilizing the necessary human, financial, technical and logistical
support for the necessary reforms;
lxxxii.
World Bank, European Union, U.N, African Development Bank to ensure that their
support to government is substantial and sustainable
lxxxiii.
Support the government reform agenda particularly relating to human rights
protection, the Justice and Security sectors.
89
lxxxiv.
Support the government to embark on the development of a national human rights
action plan and to fulfil its reporting obligations before treaty-bodies;
lxxxv.
217.
In conclusion, while reassuring the total availability of the Commission to
assist the Government in all its endeavours pertaining to the promotion and
protection of human and peoples’ rights, we call on the Government to take all the
necessary measures to implement the recommendations contained in this report
and include the status of implementation of these in its next State Periodic Report
submitted under Article 62 of the Charter and 26 of the Maputo Protocol.
90