AN ANALYSIS OF THE HUMAN RIGHTS SECTOR IN LESOTHO

Background

The state commonly known as Lesotho, officially recognized as the Kingdom of Lesotho, came
into being in 1966. It was previously the British Crown colony of Basutoland, which was given
independence by the United Kingdom on 4 October 1966. It is a fully sovereign state and is a
member of the United Nations, the Commonwealth of Nations, the African Union, and the
Southern African Development Community. The recognized sovereignty of Lesotho and its
membership in the aforementioned international organizations has a massive impact on the
human rights situation in the country, as will be explored later in this paper.

Much ado has been made about the human rights situation in Lesotho by scholars. There exists a
plethora of literature addressing the perceived violation of human rights in Lesotho. One may
argue that this affinity for Lesotho that human rights academics feel is maybe due to the unique
political and governance structure of Lesotho. The Kingdom of Lesotho is led by the monarchy,
the only country in Southern Africa to have such an executive. This makes it an interesting case
study in the broader investigation of human rights in Southern Africa.

Statutory Protection of Human Rights in Lesotho

When examining the Lesotho’s legislative approach to human rights it is important to make the
Constitution of Lesotho the point of departure for any subsequent discussion. The Constitution of
Lesotho enshrines numerous human rights in its second chapter. The second chapter of the
Constitution is tantamount to what has come to be universally known as a Bill of Rights. It is in
this chapter that the constitution grants citizens of Lesotho. It is imperative to note that with the
continuous development of international human rights law, particularly from the later half of the
20th century, individual states have largely borrowed and derived their legislative protection of
human rights from relevant international conventions and treaties. In this context, this paper will
examine the rights guaranteed in the constitution of Lesotho and juxtapose them to how
international treaties have guaranteed them. The paper will also discuss instances where the
constitutional guarantee of rights in Lesotho does not align with international human rights law.

Universalism in Lesotho uma rights framework

The Constitution of Lesotho explicitly acknowledges the universality of human rights. Section 4
reads, “as 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.” The provision is in line with international best practice. In essence,
human rights are guaranteed for the citizens of Lesotho regardless of distinguishing features or
characteristics they may have. In terms of the scpe of the people covered, the constitution of
Lesotho is in line with the beliefs expressed in the Universal Declaration of Human Rights,
particularly the essential belief that inherently every hman being is entited to basic rights.

The right to life in Lesotho

Section 5(1) of the Constitution of Lesotho enshrines the right to life by declaring “Every human
being has the inherent right to life. No one shall be arbitrarily deprived of his life.” The
statement, while simple is profound and has massive repercussions for the comprehension of the
right to life in Lesotho. The provision dictates that the right to life is inherent to every human
being. This right shall also be immune from arbitrary deprivation. Interestingly, the Constitution
states that no one shall be arbitrarily deprived of his life. The use of the male pronoun and
determinator there left much to be desired on the part of the drafters of the statute. The question
raised is that are men the only gender exempted from arbitrary deprivation of life? Consequently
if the statement starts by acknowledging the potency of every human beings’ right to life then are
women not human beings? One may argue that this is simply a mistake on the part of the drafters
but in the context of Lesotho’s notoriously patriarchal, some scholars have even gone as far as to
call it misogynist society, this mistake may have evil ramifications on the protection of women’s
right to life.
The Constitutional guarantee of Lesotho’s right to life is liable to even more criticism. Section
5(3)(b) of the Constitution allows the State to limit the right to life in instances where it is
necessary to effect a lawful arrest or to prevent the escape of a person lawfully detained. It also
limets the right to life in instances where it is necessary to suppress a riot or insurrection. These
limitations, while seemingly logical have been abused over and over again by the government
and police of Lesotho. There have been cases, such as the case of Thabiso Molise, where the
police has relied upon these limitations to arbitrarily deprived people of their lives in instances
where even with the existence of these limitations it was not necessary too. The Lesotho
Mounted Police has been riddled by accusations of of unlawful killings. Cases of epople being
arrested for petty crimes and subsequently losing their life to police brutality have been rife in
Lesotho.

These limitations on the right to life are in direct contradiction to the ICCPR understood in the
context of General Comment 36. General comment 36 states explicitly that there is no derogation
permitted in relation to the right to life, whether justified or unjustified. The killing of people in
Lesotho is hard to reconcile with the broader international human rights law.

In relation to the right to life, it is pertinent to note that capital punishment in Lesotho is legal.
The death sentence may be handed out for a number of crimes. Encouragingly, the last death
sentence was carried out by hanging in 1992 and there has been no subsequent executions.
Mosotho judges rarely give out death sentences and when they do they are normally commuted
to life sentences. In 2022 there were only two people on death row in the country. Lesotho is
considered to be de facto abolitionist as it is not a member of any convention outlawing capital
punishment. The lack of enforcement of capital punishment is encouraging on the right to life
front.

Right to Personal liberty in lesotho

An issue of note in Lesotho has been the issue of the denial of the right to personal liberty during
pretrial detention. It is imperative to note that in Lesotho someone may be held in custody for a
period of 48 hours before being charged. The right to personal liberty is enshrined in section 6 of
the Constitution. Alarmingly, the same provision guaranteeing the right to personal liberty has
sixteen limitations to it including limitations that allow minors to be arrested to “secure welfare
and education.” Arbitrary arrests and detention is common in Lesotho despite the constitutional
protection of the right to liberty. The Chief Justice of Lesotho, at the time, Maseforo Mahese
visited a correctional facility in Maseru and expressed shock upon discovery of multiple
detainees who had been imprisoned for up to eight years without charge. The discovered
detainees were not an anomaly but rather a part of a bigger systematic problem, the lack of
respect for the right to personal liberty. In a similar vein, the chief magistrate is on public record
stating that police often detain individuals improperly without regard for due process. While
unlawful detention is a gross injustice by itself one must also note the deplorable prison
conditions in Lesotho. Prison conditions in Lesotho have been described as “harsh and life-
threatening” with the perpetual fear of physical abuse by prison officers and other inmates fro
prisoners. The police has been known to use brutal force to obtain confessions from detainees
which has resulted in significant physical harm and sometimes death.

The Clamping Down of the Free Press in Lesotho

Freedom of expression is enshrined in Section 14 of the Constitution of Lesotho. This section

states that “Every person shall be entitled to freedom of expression, which shall include freedom
to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either
orally, in writing, in print, in the form of art or through any other media of choice.” The media
space in Lesotho is inherently tied to the politics of the land. Historically, the right of freedom of
expression has faced selective application in Lesotho. It is important to note at this juncture that
the largest media houses in Lesotho are owned by politicians or politically affiliated persons
which has the consequence of creating a polarizes media space. The biggest threat to the
freedom of expression in Lesotho has been the deliberate censorship by the government of
independent newspapers and media outlets.