Difference between revisions of "Lesotho"

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The Lesotho constitution contains a specific number of justiciable rights in Chapter II which protects and safeguards certain fundamental human rights and freedoms, and is set out as follows:
 
The Lesotho constitution contains a specific number of justiciable rights in Chapter II which protects and safeguards certain fundamental human rights and freedoms, and is set out as follows:
  
''Fundamental human rights and freedoms (Section 4(1) of the Constitution):
+
''Fundamental human rights and freedoms (Section 4(1) of the Constitution)'':
  
 
Whereas every person in Lesotho is entitled, whatever his race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status to fundamental human rights and freedoms, that is to say, to each and all of the following'':
 
Whereas every person in Lesotho is entitled, whatever his race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status to fundamental human rights and freedoms, that is to say, to each and all of the following'':
  
 
  the right to life;  
 
  the right to life;  
   the right to personal liberty;  
+
   # the right to personal liberty;  
   freedom of movement and residence;  
+
   # freedom of movement and residence;  
   freedom from inhuman treatment;  
+
   # freedom from inhuman treatment;  
   freedom from slavery and forced labour;  
+
   # freedom from slavery and forced labour;  
   freedom from arbitrary search or entry;  
+
   # freedom from arbitrary search or entry;  
   the right to respect for private and family life;  
+
   # the right to respect for private and family life;  
 
   the right to a fair trial of criminal charges against him and to a fair determination of his civil 
rights and obligations;  
 
   the right to a fair trial of criminal charges against him and to a fair determination of his civil 
rights and obligations;  
   freedom of conscience;  
+
   # freedom of conscience;  
   freedom of expression;  
+
   # freedom of expression;  
   freedom of peaceful assembly;  
+
   # freedom of peaceful assembly;  
   freedom of association;  
+
   # freedom of association;  
   freedom from arbitrary seizure of property;  
+
   # freedom from arbitrary seizure of property;  
   freedom from discrimination;  
+
   # freedom from discrimination;  
   the right to equality before the law and the equal protection of the law; and
+
   # the right to equality before the law and the equal protection of the law;  
 +
  # the right to participate in government
 +
 
 +
 
 +
''Right to Personal Liberty (Section 6 of the Constitution)''
 +
 
 +
(2) Any person who is arrested or detained shall be informed as soon as is reasonably practicable, in a language that he understands, of the reasons for his arrest or detention.

 +
 +
(3) Any person who is arrested or detained:
 +
 
 +
(a)  For the purpose of bringing him before a court in execution of the order of a court; or
 +
 +
(b)  Upon reasonable suspicion of his having committed, or being about to commit, a criminal offence, and who is not released, shall be brought before a court as soon as is reasonably practicable, and where he is not brought before a court within forty-eight hours of his arrest or from the commencement of his detention, the burden of proving that he has been brought before a court as soon as is reasonably practicable shall rest upon any person alleging that the provisions of this subsection have been complied with.
 +
 
 +
 
 +
'''Legislation'''
 +
 
 +
 
 +
There are a number of acts and statutes relevant as sources of defendant’s rights, including:
 +
 
 +
* The Penal Code 2010(Act 6 of 2012)
 +
This is the main source of criminal law. It sets out in straightforward terms the general and specific rules of criminal law.
 +
 
 +
* The Sexual Offences Act
 +
 
 +
* The Stock Theft Act, 2000
 +
 
 +
* The Criminal Procedure and Evidence Act 1991 as amended
 +
 
 +
 
 +
===3.2 International Sources of defendant’s rights===
 +
 
 +
Lesotho is a member of the United Nations and the African Union. It has ratified a number of UN Human Rights Conventions, including:
 +
 
 +
* International Covenant on Civil and Political Rights (ICCPR);
 +
* International Covenant Committee on Economic, Social and Cultural Rights (ICESCR);
 +
* Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT);
 +
* The Convention on the Rights of Persons with Disabilities (ICRPD).
 +
 
 +
All inhabitants of Lesotho may turn to the UN Human Rights Committee through procedure 1503, to the Special Rapporteurs for violations of specific human rights or to ECOSOC for women's rights violations.
 +
Since Lesotho is a member state of UNESCO, its citizens may use the UNESCO procedure for human rights violations in UNESCO's fields of mandate.
 +
 
 +
==4. PRE-TRIAL PROCEDURES==
 +
 
 +
'''Police procedures, Arrest, Search and Seizure Laws'''
 +
 
 +
===4.1 Arrest===
 +
 
 +
Part V of the '''Criminal Procedure and Evidence Act,1981''' provides for arrests.
 +
 
 +
Upon arrest, arresting officer may search the accused and place in safe custody all articles found in his possession. On arresting a woman on arrest, the search can only be made by a woman and must be made by strict regard to decency.
 +
 
 +
===4.2 Arrests without a warrant===
 +
 
 +
Arrests can be carried out either by the following:
 +
 
 +
* Judicial officer who sees a person committing a crime
 +
* Peace officer who sees anyone commits a crime in his presence or when s/he has reasonable grounds to believe/suspect a crime has been committed
 +
* Private person or any person
 +
* Owner of property may arrest any person in respect to which one is found committing a crime.
 +
 
 +
The grounds on which one can arrest without a warrant are clearly spelt out in the act. Upon arrest, the suspect must be told the cause of the arrest.
 +
 
 +
 
 +
===4.3 Arrests with a warrant===
 +
 
 +
Arrests with a warrant are provided by '''Section 33 of the Criminal Procedure and Evidence Act'''. A judicial officer may issue a warrant for arrest of any person or for further detention upon a written application by the Public Prosecutor. The application needs to set out the alleged offence and that from information taken upon oath, there are reasonable grounds of suspicion against the person.
 +
 
 +
A warrant issued in terms of the Act shall apprehend the person described therein and to bring before a judicial officer as soon as possible upon a charge of an offence.
 +
 
 +
 
 +
===4.4 Pre-trial detention===
 +
 
 +
If a person is arrested without a warrant, he can only be detained for a reasonable period in all circumstances of the case.A warrant can be obtained for further detention but must not however exceed 48 hours. 
 +
 
 +
An arrested person can either be released by reason that no charge is to be brought otherwise accused must be taken to a subordinate court of competent jurisdiction as soon as possible. An exception is also available when the magistrate is not available. In such cases, one can remain in custody.
 +
 
 +
''As the right to personal liberty is protected, section 6 of the Constitution determines as follows:
 +
 
 +
(2) Any person who is arrested or detained shall be informed as soon as is reasonably practicable, in a language that he understands, of the reasons for his arrest or detention.

 +
 
 +
(3) Any person who is arrested or detained:
 +
 +
(a) For the purpose of bringing him before a court in execution of the order of a court; or
 +
(b) Upon reasonable suspicion of his having committed, or being about to commit, a criminal offence,
 +
 
 +
and who is not released, shall be brought before a court as soon as is reasonably practicable, and where he is not brought before a court within forty-eight hours of his arrest or from the commencement of his detention, the burden of proving that he has been brought before a court as soon as is reasonably practicable shall rest upon any person alleging that the provisions of this subsection have been complied with.
 +
''

Revision as of 12:38, 6 March 2018

Globe3.png English


1. Background

Lesotho is a beautiful, mountainous, landlocked country completely surrounded by South Africa.[1] It is a sovereign democratic kingdom, with the king as the head of state and executive power in the hands of the government led by the Prime Minister.Lesotho is a former colony of the United Kingdom known as Basutoland. The Basotho nation was founded by the Great Moshoeshoe who later sought for protection from the British. Consequently, Basutoland became an English colony and Roman Dutch Law was infused into the legal system. Wars of independence were later fought and Basutoland gained its independence from Britain and became the Kingdom of Lesotho in 1966.

In the most recent elections in 2007, the governing Lesotho Congress for Democracy (LCD) party retained a majority of seats in parliament.


1.2 Geography, religion, languages and culture

Lesotho is often referred to as "The Kingdom in the Sky" or "The Switzerland of Southern Africa" because of the stark beauty of its rugged mountainous terrain.The country can be roughly divided into three geographic regions: The lowlands, following the southern banks of the Caledon River, and in the Senqu river valley; the highlands formed by the Drakensberg and Maloti mountain ranges in the east and central parts of the country; and the foothills that form a divide between the lowlands and the highlands.

The population of Lesotho, in 1998, was estimated to be 2,089,289 with a growth rate of 1.9 percent. At the end of the twentieth century these figures could alter rapidly as the HIV/AIDS crisis impacts the general population. The people of Lesotho are called Basotho (plural) and Mosotho (singular). The culture is cohesive, with Basotho comprising over 99 percent of the country's population, the remainder being of Asian of European origin.

Sesotho, or Southern Sotho, is spoken in Lesotho as well as in parts of South Africa. Sesotho was one of the first African languages to develop a written form and it has an extensive literature. English is the second official language, dating back to 1868 when Lesotho was placed under the British for protection against South African aggression. Zulu and Xhosa are spoken by a small minority.


1.3 Type of legal system

Lesotho’s legal system is in effect a constitutional monarchy. It is based on a combination of Roman Dutch, English Common and traditional customary law.[2]

The constitution provides for an independent judicial system, made up of the High Court, the Court of Appeal, Magistrate's Courts, customary courts (that exist predominantly in rural areas) and a Judicial Services Commission (JSC). There is no trial by jury; rather, judges make rulings alone, or, in the case of criminal trials, with two other judges as observers. The constitution also protects basic civil liberties, including freedom of speech, freedom of association, freedom of the press, freedom of peaceful assembly and freedom of religion.


Jurisdictional Issues

The High Court has jurisdiction to hear the most serious civil and criminal cases, and appeals from the lower courts. It has supervisory jurisdiction over all the courts in Lesotho. It consists of the Chief Justice, who is appointed by the chief of state on the advice of the prime minister, and a number of puisne judges, appointed by the chief of state on the advice of the JSC. Appeals from the High Court come before the Court of Appeal, which meets twice a year.

Customary law

This is a traditional system comprised of the numerous customs of the Basotho. It is recorded and codified (the Laws of Lerotholi)and some of it has been interpreted and acted upon by the courts thus incorporating it into to the formal legal system.Customary law in Lesotho is administered by Basotho or Customary courts.[3]

General observations

The majority of Justices on the Court of Appeal are South African jurists. The court does not operate by trial by jury. Rather, judges make rulings alone, or in criminal trials with 2 other judges as observers.

There are magistrates’ courts in each of the 10 districts, and more than 70 central and local courts. General laws in Lesotho operate alongside customary laws. Whether customary or general law will be applied in a case is generally determined by the nature of the case, criminal or civil, and the people involved. It is usual for common law to be implemented in urban areas, whilst customary law is more often found in rural areas.

Local courts, or Basotho Courts, are the courts of first instance for any matter involving customary law. Appeals from local courts come before the central courts, and appeals from the central or local courts come before the judicial commissioners’ courts, from which further appeals may be made to the High Court. Lesotho has not accepted compulsory International Court of Justice jurisdiction.


2. The legal aid situation in the country

2.1 State Sponsored legal aid

The Constitution of Lesotho is silent on the right to legal aid however Section 12 of the Constitution provides the right to a fair trial which includes amongst others, the right to legal representation.[4]  Although not constitutionally regulated, Lesotho does offer legal aid in both civil and criminal matters. A legal aid board was established by the Legal Aid Act No. 19 of 1978 with the mandate to make provision for the granting of legal aid to the poor persons and for connected purposes. The Act was followed by the Legal Aid Regulations 1979. It is reported that there have been challenges with the provision of National Legal Aid – including a backlog of cases. To address this challenge, the Legal Aid Counsel sometimes briefs private lawyers to handle cases referred to legal aid and the fees are paid by the Legal Aid.[5]

2.2 NGOs providing pro bono legal aid

  • Federation of Women Lawyers (FIDA) [1]

Its mandate is limited to providing advice and information on women and children’s rights so that they can achieve social justice. Current work especially focuses on property or land claims, domestic abuse, women’s empowerment and children’s rights.[6]

  • Women and Law in Southern Africa Trust(WLSA) [2]


Is an organization that strives for the realization of women’s rights which were ignored for a long time. Its mission is to promote and protect women's human rights in socio-economic, legal and political context through active research, lobby and advocacy on policy and legal reform that discriminate against women and children, training and education on laws and policies that advance women's human rights.[7]


  • National University of Lesotho Legal Aid Clinic (NULLAC) [3]

The purpose of the organization is to equip law students with practical lawyering skills as it is primarily based in an academic institution. In addition, it is meant to provide free professional legal services to the indigent in communities thus addressing social inequalities and injustices caused by lack of access to justice. NULLAC’s mission is to provide quality legal services and to facilitate access to law through an independent, impartial and professional institution.

3. Sources of defendant's rights

3.1 National Sources of defendant's rights

The Constitution of Lesotho

The Lesotho constitution contains a specific number of justiciable rights in Chapter II which protects and safeguards certain fundamental human rights and freedoms, and is set out as follows:

Fundamental human rights and freedoms (Section 4(1) of the Constitution):

Whereas every person in Lesotho is entitled, whatever his race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status to fundamental human rights and freedoms, that is to say, to each and all of the following:

the right to life; 
 # the right to personal liberty; 
 # freedom of movement and residence; 
 # freedom from inhuman treatment; 
 # freedom from slavery and forced labour; 
 # freedom from arbitrary search or entry; 
 # the right to respect for private and family life; 
 the right to a fair trial of criminal charges against him and to a fair determination of his civil 
rights and obligations; 
 # freedom of conscience; 
 # freedom of expression; 
 # freedom of peaceful assembly; 
 # freedom of association; 
 # freedom from arbitrary seizure of property; 
 # freedom from discrimination; 
 # the right to equality before the law and the equal protection of the law; 
 # the right to participate in government


Right to Personal Liberty (Section 6 of the Constitution)

(2) Any person who is arrested or detained shall be informed as soon as is reasonably practicable, in a language that he understands, of the reasons for his arrest or detention.


(3) Any person who is arrested or detained:

(a) For the purpose of bringing him before a court in execution of the order of a court; or

(b) Upon reasonable suspicion of his having committed, or being about to commit, a criminal offence, and who is not released, shall be brought before a court as soon as is reasonably practicable, and where he is not brought before a court within forty-eight hours of his arrest or from the commencement of his detention, the burden of proving that he has been brought before a court as soon as is reasonably practicable shall rest upon any person alleging that the provisions of this subsection have been complied with.


Legislation


There are a number of acts and statutes relevant as sources of defendant’s rights, including:

  • The Penal Code 2010(Act 6 of 2012)
This is the main source of criminal law. It sets out in straightforward terms the general and specific rules of criminal law. 
  • The Sexual Offences Act
  • The Stock Theft Act, 2000
  • The Criminal Procedure and Evidence Act 1991 as amended


3.2 International Sources of defendant’s rights

Lesotho is a member of the United Nations and the African Union. It has ratified a number of UN Human Rights Conventions, including:

  • International Covenant on Civil and Political Rights (ICCPR);
  • International Covenant Committee on Economic, Social and Cultural Rights (ICESCR);
  • Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT);
  • The Convention on the Rights of Persons with Disabilities (ICRPD).

All inhabitants of Lesotho may turn to the UN Human Rights Committee through procedure 1503, to the Special Rapporteurs for violations of specific human rights or to ECOSOC for women's rights violations. Since Lesotho is a member state of UNESCO, its citizens may use the UNESCO procedure for human rights violations in UNESCO's fields of mandate.

4. PRE-TRIAL PROCEDURES

Police procedures, Arrest, Search and Seizure Laws

4.1 Arrest

Part V of the Criminal Procedure and Evidence Act,1981 provides for arrests.

Upon arrest, arresting officer may search the accused and place in safe custody all articles found in his possession. On arresting a woman on arrest, the search can only be made by a woman and must be made by strict regard to decency.

4.2 Arrests without a warrant

Arrests can be carried out either by the following:

  • Judicial officer who sees a person committing a crime
  • Peace officer who sees anyone commits a crime in his presence or when s/he has reasonable grounds to believe/suspect a crime has been committed
  • Private person or any person
  • Owner of property may arrest any person in respect to which one is found committing a crime.

The grounds on which one can arrest without a warrant are clearly spelt out in the act. Upon arrest, the suspect must be told the cause of the arrest.


4.3 Arrests with a warrant

Arrests with a warrant are provided by Section 33 of the Criminal Procedure and Evidence Act. A judicial officer may issue a warrant for arrest of any person or for further detention upon a written application by the Public Prosecutor. The application needs to set out the alleged offence and that from information taken upon oath, there are reasonable grounds of suspicion against the person.

A warrant issued in terms of the Act shall apprehend the person described therein and to bring before a judicial officer as soon as possible upon a charge of an offence.


4.4 Pre-trial detention

If a person is arrested without a warrant, he can only be detained for a reasonable period in all circumstances of the case.A warrant can be obtained for further detention but must not however exceed 48 hours.

An arrested person can either be released by reason that no charge is to be brought otherwise accused must be taken to a subordinate court of competent jurisdiction as soon as possible. An exception is also available when the magistrate is not available. In such cases, one can remain in custody.

As the right to personal liberty is protected, section 6 of the Constitution determines as follows:

(2) Any person who is arrested or detained shall be informed as soon as is reasonably practicable, in a language that he understands, of the reasons for his arrest or detention.


(3) Any person who is arrested or detained:

(a) For the purpose of bringing him before a court in execution of the order of a court; or (b) Upon reasonable suspicion of his having committed, or being about to commit, a criminal offence,

and who is not released, shall be brought before a court as soon as is reasonably practicable, and where he is not brought before a court within forty-eight hours of his arrest or from the commencement of his detention, the burden of proving that he has been brought before a court as soon as is reasonably practicable shall rest upon any person alleging that the provisions of this subsection have been complied with.

  1. http://www.commonwealthofnations.org/country/lesotho/Accessed 30th November 2017 10.00pm
  2. Office of the United Nations High Commissioner for Human Rights
  3. Ibid
  4. Ibid
  5. http://www.nyulawglobal.org/globalex/Lesotho.html#_Civil_and_criminalAccessed 3rdDecember 2017 08.32am
  6. https://fidalesotho.wordpress.com/Accessed 3rd December 2017 09.40am
  7. http://www.womenandlaw.org.ls/services.htmlAccessed 3rd December 2017 10.00am