‘Troubles around 10th Amendment stall Birth of Human Rights Commission’
December 10, 2023 marked the 75th anniversary of the Universal Declaration of Human Rights. The 2023 theme is Freedom, Equality and Justice for all. Lesotho joined the rest of the world in commemorating the day but a lot still needs to be done to promote respect and protection of human rights.
The Ministry of Law’s Human Rights Division is charged with the mandate of protecting and promoting respect for Human Rights. Public’s Eye RELEBOHILE TSOAMOTSE (RT) spoke to MAKATLEHO ‘MOLOTSI (MM), the ministry’s legal officer for the Human Rights division to understand their efforts in the promotion and respect for human rights.
RT: Please explain the mandate or functions of the Human Rights Division?
MM: The mandate or function of the Human Rights Division is three fold: it is the promotion mandate; protection mandate; and, state party reporting.
It should be clear that ours is mainly to co-ordinate so, first we co-ordinate promotion of human rights within the country by promoting rights education in different ways, depending on who we are targeting at the time. We could be targeting members of the public or government institutions such as the police.
Then under our protection mandate, we co-ordinate processes needed for establishment of national human rights institutions such as the Human Rights Commission. We engage in ground work needed for the establishment of such offices.
Lastly, we co-ordinate processes leading to our state party reporting as a country. Human rights do not originate here, there is what we call Human Rights treaties that our country ratifies or subscribes to. Those treaties are an obligation by each country to submit reports periodically indicating what each country is doing regarding their implementation. Our division co-ordinates such and goes on to disseminate recommendations to stakeholders once available, in addition to tracking their implementation.
RT: In your view, how would you describe the status of human rights in Lesotho in relation to our neighbours?
MM: When we speak about the status of human rights, we speak of laws and policies – institutional frameworks; we look at their impact on people as well as implementation and practice.
I can’t compare as such but I could say we are making progress as far as institutional frameworks are concerned, taking into consideration the fact that promotion of human rights is progressive work. It’s not a once-off thing. Institutionally we are doing well. We have a Constitution that protects our human rights as well as different laws and policies addressing issues of human rights. However, there are still shortfalls or room for improvement.
RT: What are the most prevalent human rights violations in Lesotho and why do you think that is the case?
MM: Speaking on behalf of the division and looking at our mandate, I can’t single out the most prevalent human rights violation but what I believe is a serious violation is omission on our part as a country; we violate people’s human rights by failing to do certain duties.
Yes, there are laws but sometimes we fail to enact sufficiently and also fail in the implementation or taking sufficient steps to ensure that people’s rights are met or fulfilled.
When a question like this comes up, people are often quick to cite violations like rape, GBV, etc but I personally believe people are quick to cite certain violations because there are voices that speak to those violations whereas there are other equally serious or deep violations happening to some people but because there is no voice or noise about those violations, nobody speaks about them.
I will give an example. There are several movements on women and children’s rights so there are voices speaking on that hence we will know or hear about reports such as prevalent killings of women and children.
But, take for instance indigenous people, a lot of their rights are violated on daily basis and most are not even recognized but because there is no solid voice on their plight, we are not even aware of them. So I would argue that the biggest violation of human rights is omission on the part of the state to take the necessary steps or level the ground for protection of rights.
If we say killing of women and children is prevalent, it means there is something lacking on the part of the state. The country is the primary duty bearer and a rise in killings could mean something is not being done properly.
RT: Are there any distinct patterns of human rights violations between rural and urban areas? Are there differences?
MM: Yes, I would say there are patterns and they are brought by systems addressing human rights. Take legal aid, for instance, it is a programme or an initiative aimed at helping people vindicate their rights but you find that it is not available at district level. As a result, it is only accessed by people from Maseru who have access to information to know that such an office exists.
However, if you go to rural villages, people are not making use of legal aid because they do not know about it and even those who know about it, it’s difficult or costly to get to Maseru in order to access it.
RT: What programmmes is the ministry running to promote respect for human rights?
MM: Remember I said ours is to co-ordinate and it includes educational programmes to different government departments and units. For instance, we sometimes target police officers or law enforcement officers in general on the respect for human rights and capacitate them on issues such as handling of suspects while also observing human rights principles. We also educate correctional services officers on compliance with human rights standards. On top of that, we sometimes target Parliamentarians and remind them that when making laws they should take into consideration people’s human rights.
We are also involved in the co-ordination for establishment of human rights institutions knowing that the institutions are important because some violations are done by the state itself. In order to curb those violations, we need independent bodies such as a Human Rights Commission which will play a huge role in the protection and promotion of human rights and to complement us as a division.
Presently, our capacity is limited due to resources. As a unit, we are a team of only three; we are centralized and even if we wanted to run several programmes we don’t just sit down and say we are limited but we partner with civil societies already engaged in the work and that is how we expand our capacity.
RT: What is the division/ministry’s approach when there are human rights violations?
MM: We do get human rights violations alerts but what we do, we do not respond directly but channel them to proper institutions. We facilitate and co-ordinate a response because we cannot respond directly.
RT: Are the current laws we have protecting people’s rights sufficiently or would you suggest improvements?
MM: While we have institutional frameworks in place, a lot can be done and must be done to improve our human rights protection. For instance, the Constitution itself could be improved and I will demonstrate how.
Human rights are in three-fold comprising: first generation rights otherwise referred to as civil and political rights, socio and economic rights as well as people’s rights.
Our constitution currently recognizes only first generation rights but the second and third categories of rights are referred to as directive principles of state policy. One cannot go to court to claim those rights, it’s a shortcoming we have if they can’t be recognised as rights and it means even their implementation is compromised.
Also, our compensation policy for people impacted or affected by large development projects is important.
There are several human rights issues there; you find that the current laws we have speak to compensation regarding land and other things but the calculation is vague.
There is what we refer to as collective rights recognizing one’s right to the resources they find on the land. Those resources are used for people’s well-being and growth and determine their being but we know that the policy does not take such rights into consideration. One cannot go to court to claim them because the Constitution does not recognise them as rights.
So we may have a progressive institutional framework but there is an implementation problem.
RT: How do you use local government structures to promote respect for human rights? If you do how often do you hold the meetings?
MM: Yes, we do collaborate with local government structures, not just them, there is a structure in all the districts made up of different ministries’ Heads of Departments, Districts Administrators, Dispol, including the private sector. We take advantage of the already available structures and use them as our entry points to reach people.
However, I am unable to say how often our collaborations are carried out because of our limited resources; our programming is weaker because of lack of resources. I am unable to account and say in a month we were able to do a certain number of programmes but, again, we take advantage of civil society organisations already engaged in the same work.
RT: Gender Based Violence deprives women of their right to dignity. What is the action plan on GBV? What plan did you have in the past and what has been the success? How do you measure it?
MM: Right now we have some activities in the pipeline influenced by the Counter Domestic Violence Act. We will be supported by the Delegation of the European Union (EU) and will be visiting communities to raise awareness on issues of GBV. We will be teaching them what GBV is, how they may know that they are dealing with GBV and who has the responsibility to act and how they can play their part.
Issues of GBV are complex because, for instance, when they happen in rural communities and get reported to area chiefs, you find that decisions taken include that perpetrators and victims should marry. So we need to help people understand GBV and the position of the law as far as it is concerned and the role of community structures in fighting or addressing GBV.
In the plan, we will collaborate with Ministries of Gender, Police and civil society organisations. The programme will run for three years starting in the first quarter of the next financial year.
As far as the past plans are concerned, I am unable to say because I only joined the division recently therefore I am not aware of the past plans. I believe there were programmes but I am just not aware.
RT: Information Rights – what are you doing for citizens, particularly youth to access internet information?
MM: Mainly, ours is education because most human rights violations happen because of disempowerment of rights orders. If one does not know about their right to information for instance, they won’t claim such a right regardless of the available laws.
So we can intervene in situations where people’s rights are violated. For instance, let’s say the government for some reason intends to close Facebook. In such a case we will be forced to speak that Facebook is not a privilege but a right, however, so far our job is limited to education hence our advocacy and co-ordination for the establishment of the Human Rights Commission which will then compliment the work we do.
RT: At what stage of the establishment of the Human Rights Commission are we?
MM: Nullification of the 10th amendment to the Constitution (Omnibus) Bill by the courts affected the establishment of the commission directly. While the commission was not necessarily reforms related, the Human Rights Commission Bill was part of the Bills contained in the Omnibus Bill and were therefore affected by the court’s decision.
Apart from that, there was an initial Human Rights Commission Act of 2011but civil society organisations sued government arguing that the Act was not compliant with international standards of human rights institutions such as being representative enough and that the said commission had minimal mandate and independence. There was a settlement reached as government undertook to attend to issues raised by civil society and the case was withdrawn.
The 2011 Act was not operationalised as no commission was inaugurated and it was also said that the provision which establishes the Human Rights Commission in the constitution was flawed.
So we are at a stage where we awaiting the passing the Omnibus Bill but there are calls by civil society organisations to expunge it from the Omnibus Bill.
RT: Reproductive and health rights – how updated are you on what people need in as far as sexual and reproductive health rights are concerned?
MM: Ours as the office is to monitor the way services are delivered, to see if services resonate with human rights principles. What we have noticed is that indeed there are initiatives that are there not only by government but even civil societies providing Sexual and Reproductive Health Rights (SRHR). What we track is whether or not those services are being offered in line with principles of Human Rights as well as issues of equity and equality in provision of those services.
For instance, there are initiatives by the Ministry of Health like provision of SRHR for adolescence/youth. So we track their approach in offering those services and see issues such as if the services are accessible to everyone and what we have noticed is that indeed the services are there, we applaud that but there is need for services to be intersectional to include other groups of society such as the disabled and members of the LQBTQI+.
