Human Rights during the Lockdown in Lesotho
Mr Mokitimi Ts’osane on behalf of the Transformation Resource Centre (TRC)
The Government of Lesotho under its duty of guarantee stemming from the Constitution, human rights treaties and conventions has a duty and obligations to protect its citizens from any threat to their Fundamental Human Rights under Chapter II of the Constitution of Lesotho and socio-economic rights termed “Principles of State Policy” under Chapter III. It is this duty of guarantee which prompted the government to undertake extraordinary measures curb the spread of the novel Covid-19 which presented imminent and uncompromising threat to human life, health and well-being. The virus was ravaging first world countries and it exposed the inefficiencies of the system in the health sector.
In response, on the 27th March 2020 the Right Honourable Prime Minister of Lesotho declared a State of Emergency which was deemed to have come into effect on 18th March 2020. The State of Emergency proclamation was published a Gazette in accordance with section 23(1) and (7) of the Constitution. The State of Emergency also corresponded with the dictates of Public Health Order No 12 of 1970 under section 16(2)(a) which mandates enforcement and imposition of isolation during surveillance of infections. The Magistrate court also has to be applauded for the release of prisoners in order to ensure the reduction of numbers of prisoners during this desperate time of crisis.
On the 29th March 2020, the government published another gazette which ordered a stringent lockdown as recommended by the World Health Organisation (W.H.O). This nationwide lockdown was for a period of 21 days which were to commence on the 1st April 2020 and was to be enforced by the army and the police. On the 22nd April, the lockdown was extended for a further 2 weeks.
Our Commentary as TRC covers and takes cognizance of the security agencies excesses against the citizens in the course of the enforcement of the nationwide lockdown to curb the spread of the novel Covid-19. We also cover Covid-19 used as a pretext to undermine parliament and to disregard the fundamental constitutional and political values in a representative democracy. Additionally, our commentary notes that apart from the induced health crisis, the pandemic has rapidly ignited a colossal economic crisis and the Government of Lesotho under its duty of guarantee has an obligation to protect its citizens from the economic impact of this crisis.
It is against the background of this economic crisis that governments, including that of Lesotho, have had to formulate fiscal, monetary and macro-financial relief measures aimed at mitigating the socio-economic impact of Covid-19 and to provide support to individuals, households, firms and the markets crucial for a recovery. Ultimately, the fiscal and macro-economic relief measures guarantee citizens’ right to life, well-being and health. The existence of these policy measures were engineered for effective softening of the economic impact of Covid-19.
2. Human Rights Violations
We welcome the drastic measures with which the government responded to Covid-19 to enforce social distancing and deploying the army and the police to break the chain of viral transmission which greatly mitigated the risk of the spread of the virus. Further, we welcome the Right Honourable Prime Minister and the Police Commissioner Holomo Molibeli’s respective appeals to the police and army to observe human rights and refrain from acts of brutality against citizens during the nationwide lockdown. The police had also promised take action against officers who did not heed this call. However, we cannot turn a blind eye to the material that went viral on electronic and social media platforms that pointed to the excesses committed by the security agencies in course of discharging their noble duties during the lockdown.
In response, TRC launched an online human rights violations register, which is undergoing evaluation in the Human Rights Department as the Lockdown has been lifted. TRC acted on the basis that all state’s measures and responses to Covid-19, including the enforcement of the lockdown, should be proportionate, within the context and ambits of the rule of law, legal and necessary to protect public health in accordance with the constitution and international human rights instruments. We also hold a firm view that the security agencies’ should have been cognisant of the cross-cutting principle of respect to human dignity and integrity hence our condemnation of the brutal acts of torture, degrading and inhuman treatment on the citizens.
A local human rights organisation, Lesotho Lawyers for Human Rights (LLHR) through its president, Advocate Zwelakhe Mda KC also weighed in on the instances of the police and army excesses and in letter urged the Law Society of Lesotho to file an urgent application in the High Court interdicting the army commander and the police commissioner from assaulting people. The LLHR further urged the Prime Minister Thomas Thabane to ‘exact accountability from the said public officers in terms of the relevant legislative framework’. The LLHR further said it would be in the interest of justice for the rogue soldiers and police officers to be suspended from their official duties pending determination of their criminal cases. LLRH has about 10 cases of excesses committed by the security agencies in course of discharging their noble duties during the lockdown.
Up to this day the government had not acted on the letter and we have no reports of any investigations to bring the perpetrators to account despite the availability of materials which pin point the aggressors. It was reported on government website that eleven people were arrested for disregarding the lockdown protocols in the Maseru and Berea districts. The suspects were charged for contravening Section 3(14) read with Section 10(2) of Public Health Regulation COVID-19 Legal Notice 27 of 2020. We are of a view that apprehension should be applied equally between members of the security agencies and private. The culture of the members of the security agencies flouting the law with impunity has to end.
We note that under the Penal Code, 2010, the charges would be assault with intent to cause grievous bodily. We find this too insufficient given the magnitude of the torture, degrading and inhuman treatment that individuals suffered in the hands of the security agencies.
3.Covid-19 as a pretext: Prorogation of Parliament
On the 18th March 2020 the Cabinet met and decided that COVID-19 be declared a national emergency. On the 20th March 2020 the four leaders of the political parties which have formed Government attended a meeting at the Royal Palace at l8H00 whereat the Prime Minister adviced the King to prorogue Parliament and was given an ultimatum to act by 21H00. This move was opposed by 2(two) other coalition partners in Chief ‘Maseribane, the Minister of Communications and Miss K. Rants’o, Minister of Labour and Employment.
Three(3) hours later, when the King had not acted in terms of the Prime Minister advise, the Prime Minister proceeded to prorogue Parliament and issued Legal Notice No.21 of 2020. The Prime Minister’s prime reason was “due to prevalence of Corona Virus (Covid-19) which has been declared a pandemic by the World Health Organization (WHO) it is advisable not to have large gatherings of people in order to avoid the spread of the virus.”
Notably, this move was condemned the National Executive Committee of the party the Prime Minister leas being All Basotho Convention, political parties in parliament (mainly opposition), civil society organisations and most prominently from one of the coalition partners in Basotho National Party (BNP). At the time the Prime Minister prorogued Parliament he was facing an imminent motion of no confidence launched by Members of Parliament of the party he leads and was supported by ABC’s National Executive Committee. The move by Prime Minister was also condemned for the apparent unjustifiable involvement of the King in the Prime Minister’s political battles as he was facing an imminent motion of no confidence in the National Assembly. One of the Applicants’ prayers in ABC & 6 Ors and Prime Minister & 4 Ors Constitutional Case No. 0006/2020) be declared that the Prime Minister and the Deputy Prime Minister have put the office of His Majesty the King (Head of State) into disrepute and lowered its esteem.
Proroguing parliament signalled a desperate move by the Prime Minister to frustrate the enactment of the Ninth Amendment to the Constitution which would strip him off the unilateral option of advising His Majesty to dissolve parliament in case he is faced with motion of no confidence. The motion simply means that to advise His Majesty on the particular issue, the PM will need to command the two third majority of Parliament for approval. The net effect of prorogation is termination of the life of bills that lay before parliament. In this context, this could have included a bill of the magnitude of the Ninth Amendment to the Constitution.
A constitutional challenge was launched against the Prime Minster by All Basotho Convention and Basotho National Party together with 4 Members of Parliament and one member of the Senate. One of the reliefs sought was for the decision to prorogue parliament pursuant to the provisions of section 91 (3) of the Constitution of Lesotho 1993 (as amended) be reviewed, corrected and/or set aside. As alluded to at paragraph 76 of the ABC judgement the constitutional court was called upon to audit the legality of prorogation as a means to implement the Government’s policy to contain COVID-19.
In the end, the High Court sitting as the Constitutional Court found that the Prime Minister did not apply his mind to the issue of proroguing Parliament by not taking into account the role of Parliament to allocate resources to deal with the health emergency posed by COVID-19. In his response to the originating application, the Prime Minister failed to respond to the averment that he failed to take into account importance of Parliament in fighting COVID-19 and that failure amounted to an admission and the Prime Minister’s version was palpably implausible considering that it is needed most to authorise emergency funding to deal with the pandemic. The Court found that the Prime Minister by ignoring the fact that by “proroguing Parliament, its constitutional financial-resources-allocative capacity which is crucial to fighting the scourge of COVID-19, would be virtually crippled, and, therefore, render his decision irrational.”
The Prime Minister’s decision to prorogue parliament was ultimately controversial. It elicited a clear disregard of the fundamental values which are crucial to the operation of the constitutional system. The actions added fire to constitutional and political crises which have been engineered by a prime minister who “has the propensity and has persistently displayed some modus operandi to damage critical arms of government” and demonstrated a “persistent behaviour of indulging in unconstitutional decisions compromising the Kingdom of Lesotho” as noted at para. 26 of ABC’s judgement.
The prorogation of parliament indicated an unambiguous disregard for fundamental tenets of democracy and an abominable disregard of constitutional values from a pair, the PM and DPM, which should be the embodiment of the highest values. The use of Covid-19 as pretext to sideline parliament for 3 months came at a moment when political decisions of immense importance regarding the pandemic and governance were to be made. Prorogation challenged the core democratic constitutional concept of checks and balances, disregarded the importance of separation of powers and was an attempt to erode the executive’s accountability to parliament and. It was also a sheer overreach of the Prime Minister which would have embroiled the Office of the King in political battles. This was also violation of the right of citizens to participate in the conduct to of public affairs their democratically elected representatives as per section 20(a) of the Constitution.
As noted by the Court, it was undeniable that the Prime Minister used Covid-19 as his reason for prorogation but at the end it was ostensibly clear that it was just a pretext to hold onto power by a complicit collusion between the Prime Minister who is facing a murder charge and his Deputy who would qualify for lifetime deputy ministerial benefits in July 2020. The court has to be applauded for saving the core values of democracy on which the Constitution of Lesotho was developed.