Lesotho CJ Flags Rising Police Brutality

15 MARCH 2023

Legalbrief (Cape Town)

COLUMN

The frustration of Lesotho's Chief Justice Sakoane Sakoane at continuing police brutality against ordinary citizens of that country is plainly evident in a new decision. Just as disturbing for him is the fact that police mostly commit these acts with impunity – seldom are they investigated and prosecuted – and the Attorney-General often fights against complainants if they ever bring a claim for damages, even in the face of completed medical reports that put the matter beyond doubt.

He found the case of Kabelo Khabanyane against the police particularly egregious since Khabanyane is an elderly man who has a visual impairment. Thus, he was highly vulnerable to police assault. In addition, writes Carmel Rickard, their assaults against him came at dawn, after police found him sleeping.

Here's how the CJ began his decision on the December 2015 assault of Khabanyane: 'In this case, the hydra-headed monster of police brutality has reared its ugly head and claimed the scalp of a person with a visual disability.'

He also noted that Khabanyane reported the dawn assault later the same day and the officer commanding at the Mafateng police station gave him a medical form in which a doctor duly completed his findings and comments on the injuries he sustained.

However – and this is something that the CJ clearly finds just as objectionable as the assault itself – absolutely nothing seems to have been done to charge and prosecute the responsible police officers.

According to Khabanyane, he and his wife were asleep in their house when the police arrived. It was around 4.15 am when they knocked and ordered him to open the door. He asked how he could be sure that they were indeed police officers. At this, they kicked the door open, entered the house and pulled him outside. There they threw him to the ground, and kicked and beat him with a stick. Then they 'rolled him' for a distance of about 15m, all the while kicking and beating him.

Next, his wife came out of the house and handed him his walking stick, something he needed because of his visual disability. Seeing this, the police asked him how he could have a visual ability 'when he was so talkative.'

It was put to Khabanyane in court that when he came out of the house, he was 'wielding a stick' and that police had to remove it forcibly from him and that it was during that episode that he fell to the ground.

However, a witness told the court of being woken by six police even earlier that same morning. The police ordered him to take them to houses where 'men' lived. He went with the police to Khabanyane's house and observed for himself what happened – the forcing of the door, the assaults, the joking about the visual impairment.

The only witness for the police said he was part of the contingent that conducted an 'operation' at the village where Khabanyane lived. One group of police went into the village to arrest suspects and the rest remained on the outskirts of the place.

He said when Khabanyane came out of his house he was holding a stick. He (the witness) tried to grab it but Khabanyane held onto it. Another police officer came to help remove the stick and it was during this encounter that the older man fell down. The witness denied that Khabanyane was beaten or kicked.

He said that an elderly couple from a nearby house then came out and told them that Khabanyane had a visual disability. At this, the police decided that Khabanyane couldn't help them 'because they came to him to get an explanation "about what he had seen"' and they then left to look for other suspects.

The police witness admitted that when they went to Khabanyane's home, they knew he wasn't a suspect. He also confirmed that Khabanyane hadn't attacked the police. He (the witness) said that they police knew the suspects they were looking for, and thought, since he lived in the village, that Khabanyane might have known where the suspects were.

The CJ said he had no reason to disbelieve Khabanyane and his witness, while there were problems with the police witness.

While police were empowered to order 'any person above the age of 16 to assist them in investigating crimes', the law did not authorise the police to require assistance by the use of force and assaults and there were other, legal, steps to take when a private person refused to help the police.

There was no evidence that the police had asked Khabanyane to help them make an arrest of anyone suspected of committing a crime. Instead, they assaulted him and treated him 'like a suspect resisting arrest'. The police witness made it clear that Khabanyane was not a suspect, a concession that made the case of the police even worse, since it meant the police had unjustifiably invaded the man's constitutional rights.

The CJ spelled out the constitutional rights that the police had infringed and concluded that the police had had 'no business' to wake him, enter his house and treat him as they did. 'They had no authority in law to touch him at all or to enter his house without permission.' He listed the injuries sustained by Khabanyane in the assault, according to the medical report, and concluded that the police were liable.

Then the CJ trawled recent judgments from Lesotho in cases of police brutality, all of which had as a theme that the number of cases involving police brutality was increasing, and that the culprits 'must be prosecuted to protect rule of law' – this last call being directed to the Commissioner of police, the Director of Public Prosecutions and the Attorney-General as the 'triumvirate bearing the constitutional duty to protect the rule of law by investigating, prosecuting and not defending the indefensible.'

He said there was a pattern emerging of a failure to protect the rule of law. 'This is bad news for our democracy,' he commented.

If the rule of law is to be protected, there had to be official investigations and prosecutions in relation to such cases, he said. In the Khabanyane matter, for example, protecting the rule of law required that the responsible police officers be charged with aggravated assault.

He then listed a number of 'direct and indirect enablers of police brutality' drawn from work in several jurisdictions including Lesotho and Canada, as well as recommendations for tackling the problem. One of his strongest concerns was that Lesotho's police complaints authority needed to be overhauled because in its present form it did not 'bite'. This was because it has no power to receive complaints from victims directly, let alone powers to investigate and prosecute. As presently constituted it only deals with complaints referred by the Minister and the Commissioner of Police.

Given this reality, judicial officers could not be 'naïve' about the efficacy of the criminal justice process in holding police accountable and in providing adequate compensation to victims of police brutality.

The malfunctioning system left most victims with no option but to sue the Commissioner of Police and in most cases the police were 'readily defended' by the Attorney-General, even though the police had a medical record of the complainant's injuries.

At the end of his biting analysis of the difficulties in seeking compensation posed for people assaulted by police, the CJ considered the damages that should be awarded to Khabanyane. He concluded that 'doing the best that I can', given the pattern of more recent cases, he would award Khabanyane M150 000 plus interest and legal costs.

Of course, the question now is whether the CJ's comments in Khabanyane's case will lead to any changes to the police complaints authority structure, or to a more enthusiastic investigation and prosecution of alleged police brutality. Will the new Cabinet – which includes a respected former Chief Justice among its ranks – actually hear his critique and concerns, or will the voice of the CJ continue to cry in the wilderness of Lesotho's mountains?