HUMAN RIGHTS COMMITTEE CONCLUDES CONSIDERATION OF LESOTHO REPORT ON COMPLIANCE WITH CIVIL AND POLITICAL RIGHTS COVENANT

Human Rights Committee
Sixty-fifth Session
1744th Meeting (PM)

HR/CT/534
1 April 1999



Delegation of Lesotho Answers Questions Relating to Harassment of
Journalists, Prosecution of Minors and Capital and Corporal Punishment


Despite the fact that abuse of force by Lesotho's police and security forces had led to seeming impunity, the present Government was capable of bringing the perpetrators to book, that country's representative told the Human Rights Committee this afternoon.

As the Committee concluded its consideration of Lesotho's report on compliance with the International Covenant on Civil and Political Rights, he said that between 1970, when the Constitution had been suspended, and 1993, when democratic elections had been held, the Government had been in a human rights vacuum. Because of its preoccupation with its own survival in the face of hostile security forces, the previous Government had turned a blind eye to human rights violations by security forces.

The expert from Chile said that the overall problem with Lesotho's Constitution related to the restriction of the freedoms of expression, meetings, opinion and assembly. The problem of discrimination against women still existed, and effective legislation was needed to bring the judiciary system into compliance with the Covenant.

Also this afternoon, the delegation of Lesotho answered numerous questions relating to the harassment of journalists, prosecution of minors, capital and corporal punishment and the position of customary law in the country's judicial hierarchy.

Committee experts expressed sympathy with the Government of Lesotho, which was facing financial and political difficulties. The delegation agreed that many changes were needed and expressed its willingness to draw the Government's attention to the lacunae in the domestic law.

The Human Rights Committee will meet again at 10 a.m. on Monday, 5 April, to begin its consideration of the report on Costa Rica's compliance with the Covenant.

Committee Work Programme

The Human Rights Committee met this afternoon to continue consideration of the initial report of Lesotho (document CCPR/C/81/Add.14) on implementation of the Covenant of Civil and Political Rights. For background on the report, see Press Release HR/CT/533 of this morning.

Statements

PERCY METSING MANGOAELA (Lesotho) said that the statistics on women were not immediately available, but it was a known fact that women were predominant in the manufacturing industry, especially in the fields of textiles, electronics and footwear. In primary education, the majority of teachers were women, but the proportion changed at the secondary and tertiary levels. The numbers were closer to equality in the medical profession.

Regarding the aspect of police and security force abuse of force leading to seeming impunity, he recalled that someone had made the point that the Government of Lesotho seemed to be held hostage by the security forces. That was absolutely true. Between 1970 and 1993, Lesotho had gone through a very difficult time. Going back to 1970, when the Constitution had been suspended, the country had been ruled by decree until 1986, when a military coup had ended any pretence of human rights observance.

He said that between 1970, when the Constitution had been suspended, and 1993, when democratic elections had been held, the Government had been in a human rights vacuum. It had faced enormous difficulties in that period, because recruitment into the police and security forces had been very carefully monitored and very selective. The popularly elected Government had security forces that were not loyal to it, because of its preoccupation with its own survival in the face of hostile security forces. There had been several police strikes by security forces, as well as outrageous pay increases forced on the Government.

Referring to the questions of amnesty engendering impunity, he said that in the wake of the 1994 mutiny, it had been agreed, under the auspices of South Africa, Botswana and Zimbabwe, that in the interest of stability, a blanket amnesty should be sought as a pragmatic rather than a political solution. No action had been taken at the time to find the people responsible for the killing of a Deputy Minister and the abductions of some Cabinet Ministers. However, the Government was now trying to make the security forces sensitive to their role in a democratic system.

He said the present Government believed it had the capacity to bring abusers of human rights to book, whereas the previous one had not. The previous Government had turned a blind eye because it had not thought it was feasible to take action against the perpetrators.

Returning to the question of gender discrimination, he said discrimination against women did exist, especially with regard to entrenched customary law. The Law Reform Commission had been established with that issue as the primary consideration. It was hoped that the Commission would examine the entire gamut of Lesotho's laws, including the Constitution. The Government had also undertaken to establish a Ministry responsible for gender issues, as opposed to the previous Department in the Office of the Prime Minister. The proposed Ministry would also address issues concerning women, youth and the environment.

Responding to questions on seats reserved for chieftains and senators, he said it was true that most of those were men. But there were currently seven women senators acting on behalf of their husbands who had either been suspended or had died. There were also three women nominated as Members of Parliament.

P. MOCHOCHOKO (Lesotho) said that the country experienced problems regarding discrimination against women as a consequence of the existence of customary law alongside legislative law. However, he noted, some customary practices, even though they remained on the books, were no longer in operation. An example was the issue of inheritance. Research had shown that girls and women were now receiving inheritances. Also, women were now permitted to open bank accounts and to hold passports as a result of the absence of many men who were working in the mines of South Africa.

In response to a question on Lesotho's ratification of the Convention on torture, he said that while there was no law on torture in place in Lesotho as yet, a memorandum had already been prepared and circulated among the Cabinet for necessary consent.

G. MOFOLO (Lesotho) said only civilians would be members of the Police Complaints Board. He noted that a development plan -- implemented for 1998 to 2003 for police practice and procedures -- advocated that any misdemeanour committed by the police would be punished by serious measures. He added that the current criminal procedure justified killings by police in cases where culprits escaped arrest; however, that seemed to be lurking behind in actual practice.

Regarding the questions on the status of the Covenant in Lesotho, G.W.K.L. KASOZI (Lesotho) said that international norms and conventions were not self-executing. All of them had to be translated into national legislation. The delegation would ask the Government to pass special legislation on implementation of the Covenant.

On the issue of the human rights commission versus the Human Rights Unit of the Ministry of Justice, he said the Government had approved the creation of related structures. The relationship between the two did not mean subordination, but working in harmony towards a single goal. The commission would consist of independent experts, including representatives of nongovernmental organizations, investigating human rights violations. Funded by the Government, they would not take instructions from it.

In order for it to be effective, the commission needed to investigate human rights violations and have the power to prosecute them. It was going to be a pro-active body. The Human Rights Unit would not compete with the commission, but assist the Ministry in the promotion of human rights. The court document submitted with the report also described the Government of Ombudsmen established under the Constitution as yet another body to deal with human rights. On training, he said that many courses had been organized for the army and the police. Generally, a positive trend was evident in that respect.

He said abortion was illegal under the country's common law. Lesotho did not have a specific statutory provision to that effect. However, it was permitted in cases of incest, rape and insanity. Turning to the capital punishment of pregnant women and minors, he said that it was not allowed under the laws of his country. Capital punishment was still on the statute books, which were sometimes outdated. In 1997 a law had been enacted regarding criminal procedures, which did away with capital punishment. A provision on corporal punishment had also been deleted. Regarding the impartiality of the court martial following the mutiny of junior army officers, he said that it had been independent and impartial.

On female genital mutilation, L. MOTEETEE (Lesotho) said the Government was willing to take up the matter as brought up in the Committee's meeting this morning.

SEPHIRI E. MOTANYANE, Minister of Justice and Human Rights and for Law, Constitutional Affairs and Rehabilitation of Lesotho, said Lesotho's Interim Political Authority was a structure that had originally been restricted only to those political parties that had taken part in the May 1998 general elections. But that did not mean it would exclude the 23 political parties in the country. The playing field would be levelled for all the parties concerned with how the elections could best be run. Every party would be allowed.

Regarding whether it was feasible to hold general elections just 18 months since the last ones, he said he hoped it would be, although there were several hurdles, including a review of the existing electoral systems. Lesotho would then initiate the necessary amendments for change in favour of the Basotho people.

HIPOLITO SOLARI YRIGOYEN, expert from Argentina, noted that the question of the labour conflict on the hydraulic project and the resulting five deaths had not been specifically addressed by the delegation. He wondered what the situation was with regard to the police who had attacked demonstrators -- not enough information had been given. The police should be brought to justice, he insisted.

Mr. MOTANYANE (Lesotho) said this incident was still being investigated; however, the culprits would eventually be brought to court.

Ms. MOTOTEC, responding to a question on whether convictions of military tribunals were subject to appeal, said there had never been a case of that nature in Lesotho, but provisions for such an occurrence existed in the Constitution. She added that the Constitution guaranteed the independence of the Judiciary. Currently, there was a law being debated in Parliament which dealt with the present condition of the Judiciary.

On a question on the provision of legal aid to the citizens of Lesotho, she stated that there was a legal aid office in the country whose mandate was to provide aid to poor persons there. It could represent people in court and give legal advice to clients in chambers.

In response to another question, Mr. MANGOAELA said that currently no measures were taken to allow an offender to benefit from the lighter of the available punishments, and no such measures were being considered by the Government. The fact that such a question had been asked had drawn attention to the issue, and the delegation would recommend inclusion of such articles in the domestic law.

Regarding the question on the authority to search, Mr. MOFOLO said that limitations on such authority existed. The authority to search without a warrant belonged only to qualified officers. Delays in obtaining a warrant would jeopardize the results of the search, which should be done in the daytime and only in the presence of 2 witnesses.

In response to the question regarding restrictions on telephone tapping, Mr. KASOZI said that such a measure was authorized only when justifiable suspicion existed. He was not sure if safeguards existed. On the question regarding legal provisions entitling citizens to obtain information from the Government, he said that there was no legal basis for that. According to the wording of the Constitution, only the King could claim the right to be informed by the Prime Minister. Information relating to State security could not be divulged.

To further questions, Mr. MANGOAELA said that the Covenant guaranteed the right to hold opinions and express them. However, the Constitution permitted the restriction of that right in respect to civil officers. That constitutional provision was not compatible with the Covenant, but it was supposed to guarantee neutrality of civil servants. There was also a deliberate restriction on the right of public servants to join trade unions. They were not allowed to go on strike or conduct collective bargaining. There were practically no restrictions on established trade unions.

Responding to a question relating to the Interim Political Authority, Mr. MONTANYANE said one of its powers was to review the present electoral system and recommend to the Government whether there could not be a more representative and democratic system. The Senate was unrepresentative because 22 out of 33 seats were reserved for Principal Chiefs and 11 others were nominated by the King on the advice of a Council of State. Was there any need for a small country like Lesotho to have a multipurpose legislature? Even Senators must be elected. It was a very serious problem whenever 11 Chiefs were represented in the Senate. The Constitution would be amended very soon.


Referring to a question on discrimination against physically disabled persons in employment, education and in government and public services, Ms. MOTEETEE said the Minister of Social Welfare had drafted legislation that was still being deliberated upon.

Responding to a question relating to dissemination of information about the International Covenant on Civil and Political Rights, Mr. KASOZI said that out of some 78 people and groups invited to attend the deliberations on the report, more than 58 people had attended. The proceedings were available for the Committee's perusal. Those who had attended had been advised when the report had been submitted and had been told when it would be coming up for discussion by the Committee.

He said that when the delegation returned to Lesotho, another workshop would be held where the delegates would let them know what had been discussed. Judges would be informed about what the Committee had said about the application of international human rights standards. The report had been translated into Sesotho and was being circulated around the country. The delegation would also let the Law Society of Lesotho know what the Committee had thought about the report.

Questions and Comments from Experts

MARTIN SCHEININ, expert from Finland, said that he wished to have more concrete information on the political participation of women in Lesotho, especially in the upcoming elections. Were there plans to constitutionally narrow the powers of the King or were there plans to extend those of the head of Government? he asked. He gathered there was no support for the Westminster model of government and that it remained unpopular among the citizens. He wondered whether proposals for any constitutional reform to change that model would also affect the composition of the Assembly, since the Lesotho Constitution required that any legislative amendments would require the holding of a referendum, and there was currently in place a proposal to change the Assembly's composition.

Time before the forthcoming elections was running out, he said. He also pointed out that the Covenant, and specifically article 25, did not require any specific model of representation. Its principles only stipulated that all citizens had the right to participate in the conduct of public affairs.

MAXWELL YALDEN, expert from Canada, said that he needed more information on homosexuality between consenting adults in Lesotho. In addressing article 26 and the issue of discrimination and protection by the law, he noted that there were a number of extraordinary exceptions included in the Constitution and those were incompatible with the principles of the article.

On a separate issue, he wondered whether the jurisdiction of the Ombudsman extended to the armed forces and the police. Another area that lacked detailed answers and data was how the provisions in the Constitution for equal opportunity for men and women in the workforce were being implemented. Was there an independent, preferably statutory, office in Lesotho that monitored adherence, in that regard, to the Covenant? he asked.

Regarding the right to fair trial, FAUSTO POCAR, expert from Italy, said that the question had a number of serious implications, and more measures should be undertaken in that respect. Trials should be conducted in strict accordance with the Covenant, and that should be a fundamental guarantee of respect for human rights. The Constitution of Lesotho had a number of discrepancies with the Covenant. For example, it stated that every person should be considered innocent until proven, or had pleaded, guilty. He doubted that the latter part of that provision was in compliance with the right to a fair trial. The provision that the accused should have adequate time and facilities to prepare his defence was included in the Constitution, but the provision regarding access to an advocate had been left out. What measures did the State party intend to take to rectify the situation? he asked.

Lord COLVILLE, expert from the United Kingdom, said that the situation was unusual when the majority of the male population was absent from the country to work at foreign mines. In that connection, he wanted to know how disputes in the industrial field were settled. A number of questions arose in that connection, including those of discrimination on the basis of gender and equal pay for equal labour.

HIPOLITO SOLARI YRIGOYEN, expert from Argentina, emphasized the need for freedom of opinion, and said the Committee was not familiar with the press law of Lesotho. He also wanted to know about the registry for journalists. His other question was whether journalists had freedom of access to information in all cases.

ECKART KLEIN, expert from Germany, referring to discrepancies between the Covenant and Lesotho's Constitution, asked about the practice of telephone tapping going on at the suggestion of the national security service. According to article 17 of the Covenant, telephone tapping was an interference. The elements contained in the article must be met and the Constitution must specify, without any escape clauses, the reasons why such practices could be allowed. He stressed that such decisions must be reasonable and proportionate. The people affected by such practices must be notified and should be accorded the opportunity to go to court and seek redress if necessary.

ABDELFATTAH AMOR, expert from Tunisia, said he was concerned about the legal status of public servants and officials. The report had stated that those persons were not allowed to join a union. He hoped that the associations which they were allowed to form would be in accordance with the right to peaceful assembly as provided for in article 21 of the Covenant. Also, addressing the right to freedom of expression, he noted that the Minister of Communication could decide, by discretion, to grant licences to members of the mass media. What other criteria were in place to guarantee that the media was allowed to practice their craft? he asked.

ELIZABETH EVATT, expert from Australia, said deprivation of children's liberty in Lesotho was a common phenomenon. She referred to the section of the Lesotho Constitution which authorized detention of persons under age eighteen for the purpose of improving their educational welfare. What about the issue of warrants for children to be taken into care? she asked. Parents were allowed to request magistrates to put children into confinement because of family disobedience, and those magistrates sent those children to juvenile training centres on the grounds that they needed care. What remedies were available and what were the authorities doing to prevent that situation? she asked.

Mr. BHAGWATI, expert from India, wondered if the accused could only get legal aid at the trial, or if they could get it upon arrest and while in detention. In connection with the Printing and Publishing Act, he wanted to know if it contained any provisions for refusing registration.


Mr. AMOR, expert from Tunisia, said that Lesotho had codified custom law, and he wanted to know about the nature of such codification. Had it been an exercise of legislative character? he asked. What was the position of customary law in the hierarchy of laws and did it have precedence over other laws, including the Constitution? Were there problems of integration into national law, and what were the issues of applicability? Had the Covenant been published and had it been brought to the attention of the individuals making use of it? Popularization and dissemination of the Covenant were also matters of interest, he said.

Responses from Lesotho Delegation

On the question regarding interim political authority, Mr. MOTANYANE said that elections could lead to the creation of a minority Government, as well as a one-party Government. Minorities could be represented in the Parliament. There must be change, and it must not be radical. The country needed a system that was easy to implement. There were proposals to change the electoral system. A two-thirds majority was needed to make an amendment, and a referendum was not necessary for that purpose.

To the question about harassment of journalists, he said that he had personally filed court cases against newspapers for blatant insults. That did not imply harassment. Newspapers had a code of conduct and were not licensed to insult anybody. The Prime Minister, as well as other Ministers, had also filed claims to fight the publishing of abusive and insulting statements.

Mr. MANGOAELA said there was no perfect electoral system. In theory, the proportional system was often said to be the best, but in practice it was not. An intense debate on that issue was going on in Lesotho, and even in South Africa, which had traditionally used the first-past-the post electoral system, but which was now rethinking it for certain categories. Lesotho could not afford frequent elections like Italy and nobody would provide the money for the country to run frequent elections. The Covenant did not prescribe any particular electoral system.

Regarding questions on the harassment of journalists, he cited a case in which a journalist claimed to have been denied access to a court martial and who later admitted that, in fact, he had been denied access not to the court martial but to the accused, who only the immediate family could see. The same journalist had also claimed to have been assaulted, only to admit later that he had, in fact, only been threatened with assault. There was a highly charged atmosphere in Lesotho at the moment to which not even journalists were immune.

Mr. MOCHOCHOKO, referring to a question on amending constitutional provisions relating to the Office of the King in order to allow a woman to ascend to the throne, said the Interim Political Authority did not have a mandate to look into that issue, which was governed by customary law. The Office of the King was hereditary and only the male issue of the royal line could occupy it.

He said the codification of customary law had taken place years ago when a college of Chiefs and prominent citizens had come together and codified traditional practices, some of which were no longer practicable. It was the law of the country, existing side by side with Roman Dutch law in the courts. There were invariably contradictions between the two, and the courts had adopted guidelines to work them out. But customary law was not in any way subservient to Roman Dutch law.


Mr. MANGOAELA (Lesotho) said that at the turn of the century there had been a quasi-legal codification of customary law by an advisory council to the resident commissioner.

Responding to the question on the minimum age for criminal responsibility, Mr. KASOZI said that children up to the age of seven were presumed innocent. Between the ages of seven to fourteen the presumption was debatable. He added that above fourteen years, one could be considered criminally responsible.

Mr. MAFOLO said legal aid was currently available when a person was being tried. If it was possible for the person who had been arrested to obtain legal counsel, then there was no law against it. He was addressing a question on limitations to access to legal aid by citizens of Lesotho. The court itself sometimes appointed aid for a person, he added.

On a separate question, on the rights of a person to seek justice if he perceived that his rights had been denied, he said there was nothing that would prevent that person, under common law, to go to court.

Mr. MANGOAELA said the Government of Lesotho was operating under a budget with certain limitations, due to the country's structural adjustment programme presently being undertaken according to the requirements of the International Monetary Fund (IMF). In the past six years, he added, there had been serious efforts taken to address the human rights situation in Lesotho. One manifestation of that effort had been the establishment of a large number of independent newspapers and private broadcasting stations. He emphasized that that had never happened in Lesotho.

CECILIA MEDINA QUIROGA, expert from Chile and Committee Chairperson, expressed the Committee's sympathy for the financial and political difficulties that Lesotho faced. From the standpoint of the Covenant, however, one major problem was the legal status of the Covenant and its expression in the Lesotho Constitution. The overall problem with the Constitution, however, was the restriction of freedoms of expression, meetings, opinion and assembly, she stated. The problem of discrimination still existed, particularly against women. Also, effective legislation needed to be enacted so that the police force could have the law applied to it. The Judiciary system also needed to be revised to bring the Constitution in compliance with the provisions of the Covenant. One area, she noted, was the question of how the judiciary could act in times of emergency, under article 21 of the Covenant. That was a rather murky area.