The 1993 Constitution of Lesotho explicitly protects the rights to life and to freedom from torture or other inhuman treatment.Ss. 4(1), 5, and 8, 1993 Constitution of Lesotho (as amended).The Constitution decrees that:
There shall be a Police Service for Lesotho that shall be responsible for the maintenance of law and order in Lesotho.S. 147(1), 1993 Constitution of Lesotho (as amended).
The Constitution further decrees that the National Security Service is responsible for the protection of national securityS. 148(1), 1993 Constitution of Lesotho (as amended).and the Prison Service is responsible for the administration of prisons in Lesotho.S. 149(1), 1993 Constitution of Lesotho (as amended).
With respect to the use of force by the State, Section 5(2) of the Constitution provides as follows:
Without prejudice to any liability for a contravention of any other law with respect to the use of force in such cases as are hereinafter mentioned, a person shall not be regarded as having been deprived of his life in contravention of this section if he dies as the result of the use of force to such extent as is necessary in the circumstances of the case:
a. for the defence of any person from violence or for the defence of property;
b. in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
c. for the purpose of suppressing a riot, insurrection or mutiny; or
d. in order to prevent the commission by that person of a criminal offence,
or if he dies as the result of a lawful act of war or in execution of the sentence of death imposed by a court in respect of a criminal offence under the law of Lesotho of which he has been convicted.
Under Section 22(1) of the Constitution, any person alleging a violation of the above provision on deprivation of life as well as, among others, the prohibition of torture or other inhuman treatment, may apply to the High Court for redress.S. 22(1), 1993 Constitution of Lesotho (as amended).
|1966 Covenant on Civil and Political Rights (ICCPR)||State Party|
|ICCPR Optional Protocol 1||State Party|
|1984 Convention against Torture (CAT)||State Party|
|Competence of CAT Committee to receive individual complaints||No|
|CAT Optional Protocol 1||Not party|
|1998 Rome Statute of the International Criminal Court||State Party|
|1981 African Charter on Human and Peoples' Rights||State Party|
|1998 Protocol to the African Charter on the African Court||State Party|
|Article 34(6) declaration regarding individual petitions||No|
|Malabo Protocol on Amendments to the African Court of Justice and Human Rights||Not party|
Police Use of Force
In 1998, the Lesotho Mounted Police Force was renamed the Lesotho Mounted Police Service.S. 2, Third Amendment to the Constitution Act 1998.Section 32 of the 2010 Penal Code Act addresses "Lawful physical force". It allows the use of force that is necessary and reasonable (i.e. proportionate) in effecting an arrest or preventing crime:
No offence is committed by a person who applies reasonable physical force to another when this is necessary:
(a) for the furtherance of public justice;
(b) for the execution of lawful orders;
(c) for the prevention of crime;
(d) for the apprehension of criminal suspects;
(a) for the defence of person or property; or
(b) for the lawful and reasonable chastisement of children.
In February 2018, Lesotho's Minister of Police, retired Senior Superintendent ‘Mampho Mokhele, acknowledged that the Lesotho Mounted Police Services frequently use torture to extract confessions from suspects.
In addition to the constitutional provisions allowing deprivation of life cited above, the 1984 Internal Security Act permits a police officer at a protected place to use force to stop, detain, search, or remove a person. Such force
may, if the stopping, detaining, searching or removal cannot be effected by other means, extend to causing injury to that person.S. 41(e), 1984 Internal Security Act.
Use of Force in Custodial Settings
The Lesotho Correctional Services Act No. 3 of 2016, which entered into force on 1 July 2016, regulates the organisation, administration and discipline within the Lesotho Prison Service. The new law makes it clear that no detainee should be subjected to any form of torture.
The 1998 Lesotho Mounted Police Service Act established an Inspector of Police, an independent Police Complaints Authority, and a Directorate of Policing. The Act gives Inspector of Police that has responsibility to monitor the effective and efficient functioning of the police force.S. 21, 1998 Lesotho Mounted Police Service Act.The Directorate of Policing is tasked with overseeing the police. The Police Service Amendment Bill 2003 requires all organs of the state to assist the Police Complaints Authority in its duties. The Authority is not empowered, however, to receive complaints directly from the public.
Mokete v. Commissioner of Police (2001)
In his judgment, which concerned use of firearms against a fleeing robbery suspect, Justice S. N. Peete of the High Court explicitly cited Section 5 of the Lesotho Constitution. He stated that:
The sanctity of human life, bodily integrity and liberty is a cornerstone of the Bill of Rights in our Constitution, and in enforcing the laws of the land, the police must always exercise restraint in the use of lethal force in effecting arrest. Each case will of course depend on its own particular circumstances.
He observed that:
In their use of force whether to kill or incapacitate a fleeing suspect, the police have to exercise restraint and use lethal force as matter of last resort when all other means have failed; for example, when the police pursuing a fleeing suspect are armed with rifles, the police have to warn the suspect that the rifles may be used, and if used, it is necessary perhaps to shoot into the air before actually shooting at the suspect. In this case single burst of firing at the wheels of the bus could have easily punctured them. It seems to me that the shooting was done more to incapacite the driver than to puncture the wheels.
Justice Peete further declared that:
... the onus to justify the use of force rests upon the defendants to discharge the same on a balance of probabilities. Here we have a case of a suspect who is found seated in the bus, probably unarmed, and whose bus is immediately surrounded by six police officers all armed with heavy rifles. In my view the bus could have been easily and quickly immobilised by shooting at its wheels without injurying the driver, the rifles being of a high calibre. In their random shooting, it seems to me more probable that the shooting was done to "incapacitate the driver" and in my opinion it was an excessive use of force. The police could have shot into the air or at the bus windows to cause plaintiff to surrender. I do not think that shooting the deceased was accidental either because the wheels of a coaster bus are large enough to have been targeted and shot at without injury to the plaintiff. I come to the conclusion that the defendants have failed to discharge the onus that primarily rested on them and find that the use of force in the circumstances of this case was excessive and hence was unlawful.
Chabeli v. Commissioner of Police (2005)
In its 2005 judgment in the Chabeli case, the Court of Appeal held that in a case in which striking police officers killed another police officer:
the material facts show that members of CodesaThe name given to a committee formed by junior officers to negotiate their grievances with the senior management of the police force.and the deceased's killers in particular deviated from their normal police duties to such a degree that it cannot be said that in committing the unlawful acts in question they were still exercising the functions to which they were appointed. Put differently, the facts show that the acts of the police officers in question took them out of the course and scope of their employment.