MASERU – In a landmark judgment geared at tightening protection of suspects’ rights of suspects and putting a stop to the spike in civilian deaths at the hands of the police, the Constitutional Court this week issued a gamut of guidelines that outlaw inordinate detention, torture and arrest to extract evidence.
From now on, police investigators will not unliterally decide to keep suspects in custody for more than the stipulated 48 hours but will have to provide cogent reasons to a magistrate’s court when there is need to do so.
The court – in a judgment that is scathing in its criticism of police brutality and impunity, a perception that has triggered widespread public disdain for the police – said suspects should be told their rights upon arrest, informed of the charges they are facing and be allowed legal representation.
Also, arresting officers should identify themselves and produce valid identification at the request of the suspect or people present; and desist from using excessive force on suspects.
The ConCourt’s intervention comes on the back of howls of protest about police torture, civilian deaths and the dominant perception rogue members of the Lesotho Mounted Police Service (LMPS) were being allowed to get away with conduct not acceptable in a democratic society.
The unprecedented case of judicial activism – a rarity in Lesotho – means police investigators have to furnish reasons why they need more time to complete interrogating suspects.
Further, the police have to show why they consider charges against suspects well founded enough to warrant keeping suspects in detention beyond 48 hours, as outlined in the Criminal Procedure and Evidence Act 1981 (CP&EA).
According to the judgment, police have over time relied on the CP&EA to justify unconstitutional and unjustifiable conduct.
Justices Molefi Makara, Sakoane Sakoane and Moroke Mokhesi also ordered police to always furnish reasons for the arrest of a person within three hours after being brought to the police station and that police should record the reasons for the arrest in the police diary and transfer the same to the investigation diary in the docket.
The judges said police upon arresting a suspect and finding marks or injuries on the suspects, record the reasons for the infliction and take the persons to the nearest hospital or government doctor for treatment and obtain a certificate from the attending doctor and furnish a copy to the arrested person.
On top of that, prosecutors and magistrates have been directed to ensure that there are exceptional circumstances leading to the further detention.
“If the magistrate is satisfied, having considered the stated reasons and materials and representation by the arrested person, he may pass an order for further detention; otherwise, he shall release the person forthwith,” reads part of the guidelines.
If magistrates authorise further detention in police custody, they may allow a stated period not exceeding 48 hours and that if there is no evidence linking the suspect to any offence, the accused must be released.
Magistrates have also been ordered to inquire into deaths of suspects in police custody immediately after receiving the information while it is also the duty of the arresting officer, or the investigation officer, jailer to inform the nearest magistrate or relative at once about the death of any person who dies in custody.
The guidelines, according to the court, stem from provisions of the CP&EA which have been attacked by ’Maabele Ramakatsa and Ntsoaki Sentje, whose children had been detained by police.
Ramakatsa and Sentje approached the ConCourt in August 2018 to challenge the constitutionality of certain provisions of CP&EA in so far as they permit further detention beyond 48 hours.
The duo argued that the provisions of the act breached citizens’ constitutional right to a fair trial and that they are at variance with the legal precept that police must investigate first, before effecting an arrest.
They had also asked the court to reaffirm the constitutional provision that detained persons’ have the right to access and consult a legal representative of their choice.
Abele Ramakatsa and Sentje Leemisa were arrested in August 2018 and detained for weeks while their lawyers were barred from seeing them because police investigations were ongoing.
Their parents namely; ’Maabele Ramakatsa and Ntsoaki Sentje then petitioned the ConCourt seeking a declaration affirming that certain sections of the CP&EA, which was used to detain their relatives, were inconsistent with the Constitution.
They had also asked the court to declare the provisions inconsistent with section 12 (2) (a) of the Constitution in so far as they permit further detention of suspects on account that further investigations were being conducted.
Section 32(1) of the Act reads: “a person arrested without a warrant shall as soon as possible be brought to a police station or charge office and if not released by reason that no charge is to be brought against him, may be detained for a period not exceeding 48 hours unless he is brought before a judge or a magistrate upon a charge of any offense and his further detention is ordered by that judge or magistrate or a warrant for his further detention is obtained in terms of section 33.”
Also, section 33 (4) states that “where a warrant is issued for the arrest of a person and such person detained by virtue of an arrest without warrant, the warrant shall be deemed to have been cancelled and the provisions of this act relating to the arrest of a person without warrant shall apply in respect of such person”.
Their case was that it is constitutionally offensive to keep suspects in custody while investigations are ongoing and making them investigative tools in a case against them.
However, the court did not find these provisions inconsistent with the Constitution but launched a blistering attack on the police for using these clauses to break the law.
In their case, the court declared that the detention of Abele Ramakatsa and Leemisa Sentje beyond 48 hours was a violation of their constitutional right to liberty, thus unlawful.
The court also said failure by police to bring the detainees to court as directed by the warrants for arrests and keeping them in police custody for interrogation was unlawful as well as declaring that denial of access by lawyers to the detainees was in violation of their right to access to legal advice and representation.
According to the judgment, access to a lawyer during police interrogation can only be restricted if securing the presence of a lawyer is impossible “or that circumstances of the case make it impracticable to adhere to it such as if waiting for a lawyer from the moment of detention would render interrogation with expedition practically impossible given the constitutional and statutory 48-hour period with which the police are expected to confirm their suspicion and decide whether to lay a charge and bring the suspect to court”.
The court further said the physical appearance in court within the 48-hour period is a mandatory procedural requirement and serves as a judicial detection of ill-treatment and unjustified deprivation of liberty, enables the court to scrutinise the legality of the detention as well as serving as the authorisation and justification for extension of further detention.
“If police require to do further investigations and need to keep the individual in custody, police must justify their request and the detainee is entitled to legal assistance and to have access to documents in the docket which are essential in order to effectively resist the police request.”
The judgment also said further detention should not be granted for the purpose of prolonging interrogation whose object is to wear down the resolve of the detainee not to cooperate with the police or to induce him to make admissions or confess to the commission of the offence.
“Magistrates should be alert to inquire and ask for reasons that justify further detention so as to assess their relevance and sufficiency and such reasons and assessments must appear in the record of proceedings so that the detainee if unhappy apply for review.”
The court further said: “The 48-hour period is the maximum, it is not a target or acceptable deadline for detention, if it is not possible to bring a detainee to court before the period expires and no charge is laid, any further detention becomes unconstitutional.”
The judges said it was not the business of the police to decide whether the suspect has to be detained further pending trial but the role of the court.
“A request for further detention must be made by way of an application based on sworn information that there are reasonable grounds for suspicion, further detention may be ordered only if the court is satisfied that there are exceptional circumstances which warrant it and its purpose is to bring the arrested to trial upon the charge of the stated offence.”
The judgment comes at the height of a widening debate about police brutality in Lesotho.
This after the law enforcers were accused first by opposition politician Bokang Ramatšella of murdering civilians in their custody, without fear of consequences.
Ramatšella, in a letter to police boss Holomo Molibeli last year, accused the police of covering up cases in which officers were suspects.
“It is my earnest request that all cases of murder where perpetrators are suspected to be members of the LMPS be thoroughly investigated, and the suspects be arrested and brought before the courts of law,” Ramatšella said.
“I am of the opinion that the LMPS should not allow its members to evade justice or be above the law. My understanding is that this selective application of the law flies in the face of Section 4 (o) of the Constitution of Lesotho which provides for ‘the right for equality before the law’,” he said, in the hard-hitting letter.
Molibeli immediately promised to re-open all cold cases involving murder, but this did not disperse the palpable whiff of police corruption.
Police minister retired Senior Superintendent ’Mampho Mokhele recently admitted police used archaic and crude methods, including torture, to gather evidence.
Speaking at a function to receive forensic equipment from the Algerian government, Ms Mokhele who served as a police officer for 37 years, admitted that the police sometimes resorted to torture in order to extract information from suspects.
“We as the police are often forced to use violence to get information out of people because at times we would be sure that the suspect committed the crime but due to lack of tangible evidence we have to use force,” Ms Mokhele said.
This is notwithstanding that the constitution prohibits torture in line with international standards that have classified it as an international crime.
Further, evidence obtained this way in is not admissible in court.
Also, it was common for rogue officers – like Mokhele admitted – to justify use of excessive force to extract confessions from suspects saying they did so because of a dearth of resources.
Such police conduct was a clear breach of both domestic and international law which enjoin officers to investigate allegations first before arresting suspects.
The scale of police brutality and growing evidence showing that some officers dabbled in criminality was dramatised by the arrest in 2017 of officers for the killing of fellow cop, Constable Mokalekale Khetheng.
Khetheng was dragged from a village party by officers, only for his body to be recovered in a pauper’s grave in Maseru.
Transformation Resources Centre (TRC) director Tsikoane Peshoane is on record criticising rogue elements in the LMPS, saying although the constitution and the LMPS Act explicitly prohibit torture and inhumane practices, police officers “constantly violate the law” while claiming to enforce the law.
Peshoane said his organisation was shocked by alarming incidents of torture or cruel, inhuman or degrading treatment and “arbitrary deprivation of life” by members of the LMPS.