IN
THE HIGH COURT OF LESOTHO

CIV/APN/270/2007

In
the matter between:

`MAMALEBANYE
LEROTHOLI APPLICANT

VS

COMMANDER
OF LESOTHO DEFENCE FORCE 1^ST
RESPONDENT

MINISTER
OF DEFENCE 2^ND
RESPONDENT

COMMISSIONER
OF POLICE 3^RD
RESPONDENT

SUPERINTENDENT
MAKOANYANE HOSPITAL 4^TH
RESPONDENT

ATTORNEY
GENERAL 5^TH
RESPONDENT

JUDGMENT

Delivered by the Honourable
Judge M. Mahase

On the 2^nd
July, 2007

HABEAS CORPUS –
Release of detainee unlawfully abducted or kidnapped.

This is a habeas
corpus application which was filed on urgent basis but on notice by
the applicant whose husband had been kidnapped.
The applicant is the
wife of a detainee, one Makotoko Lerotholi – an ex member in the
Lesotho Defence Force.

Habeas Corpus is
defined in the Concise Oxford English Dictionary – Tenth Edition –
Revised as being:-

“a writ
requiring a person to be brought before a Judge or into court,
especially to investigate the lawfulness of their detention.”

It is apposite to
indicate at this stage that the application herein was granted and or
that the rule nisi herein was confirmed
on the 2^nd
July 2007 and orders/prayers thereat were to operate with immediate
effect. It will be clear shortly from the facts of this case
why
such an application was so granted.

The applicant
approached this court on urgent basis asking for the granting of the
following orders/prayers:-

1. 
   Dispensation with
   the periods and modes of service of process stipulated by the rules
   due to the urgency of this matter.

   
   

2. 
   Directing
   respondents to facilitate access by applicant’s attorney to
   Makotoko Lerotholi in private for purposes of consulting
   and taking
   instructions.

   
   

3. 
   1^st
   to 2^nd
   respondents should not be directed forthwith to produce the body of
   the applicant’s husband Makotoko Lerotholi to this Honourable

   Court.

   
   

4. 
   Applicant’s
   husband should not be released forthwith by his captors.

   
   

5. 
   Declaring the
   applicant’s husband kidnapping and detention by the 1^st
   respondent’s men unlawful and violation of his right to liberty.

   
   

6. 
   Directing 4^th
   respondent to furnish the medical report of all the applicant’s
   husband’s physical examination done while he remained in
   the
   Makoanyane Army Hospital.

   
   

7. 
   Directing 1^st
   respondent to order his men not to inflict any assaults on Makotoko
   Lerotholi.

   
   

8. 
   Granting
   applicant further and/or alternative relief

   
   

1. 
   Costs of this
   application.

   
   

2. 
   Prayers 1(a),
   (b), (c), (d), (f) and (g) to operate with immediate effect as
   interim interdict.

   
   

Facts which
precipitated into the launching of this application are clearly
stated in the applicant’s founding papers.

In brief they are
as follows:-

The applicant’s
husband, Makotoko Lerotholi was on the 22^nd
June 2007 kidnapped near the gate of Lakeside Hotel in Maseru. At
that time, the applicant’s husband was there in the company
of
other people with whom he was having a conversation.

Having been so
kidnapped the said Makotoko Lerotholi was forced into one of the
three vehicles and his captors immediately drove
away from that place
taking the direction towards the Makoanyane Military Barracks.

A report about
this incident was subsequently received by the applicant, but she has
not disclosed the source of her information
for fear of reprisals due
to the then prevailing situation in this country wherein some other
people had in the like-manner been
kidnapped and extremely brutally
tortured and assaulted.

Be that as it may,
the applicant and her lawyers went out in search of her husband who
was never seen again after he was so kidnapped
by those men. She
made several inquiries about the whereabouts of her husband from the
Ratjomose Military Headquarters base all
in vain. In particular she
and her lawyers went to the said military police headquarters on the
26^th
June 2007. There they met with one Colonel Pasane who is head of
that base. Upon inquiries from him as to the whereabouts of
the said
detainee, Colonel Pasane denied any knowledge of same adding that if
the said detainee had been one of the people detained
thereat
Ratjomose Barracks, that fact or that the said detainee’s name
would have been appropriately registered in their registers
therein.
So their inquiries were not fruitful.

The applicant’s
story in this regard is supported by that of Messrs Lerato Makholela
and Hae Phoofolo in whose company the applicant
was while at the said
military barracks and while having a conversation with Colonel
Pasane.

According to
papers herein filed of record, it was only on the 1^st
July 2007 that a report was received about the applicant’s
husband’s whereabouts. This information having been received by

Advocate L. Makholela from the office of the Assistant Commissioner
of Police, Mr. Mhlakaza. This report/information confirmed
the
applicant’s suspicions that indeed her husband has been in custody
at the Makoanyane Barracks wherein he was a detainee.
Her further
story is that the said information, which she verily believed had
been communicated to the Assistant Commissioner
by an unidentified
person in the Lesotho Defence Force who had informed Mr. Mhlakaza
that he (the unidentified person) was bringing
the said Lerotholi to
the police for the police to charge that Lerotholi.

Adv. Makholela’s
evidence is however that the information so received by the Assistant
Commissioner of Police did not specify
the charges which he was
ordered to prefer against Lerotholi. It is his further evidence that
the said Assistant Commissioner
of Police had not accepted to allow
that to happen for the reason that it was not explained, nor was it
understandable why the
army personnel had detained that person.

It is the
applicant’s story that even though the army personnel had, on
numerous occasions denied any knowledge of her husband’s

whereabouts; and in particular that he had been detained at the
Makoanyane Barracks, she was among others later informed by one

Brigadier Mahao that her husband was still alive. She therefore
formed an opinion that Brigadier Mahao knew where her husband
was.

It is her further
evidence that rumour was spreading that her husband had not only been
unlawfully detained and kept in the custody
of the Lesotho Defence
Force; but that he had been so brutally and seriously assaulted by
the members of the army and his captors
that he was reported to have
died.

She became so
anxious and concerned to see him and know about his health condition,
as well as his fate that she frequented the
Makoanyane Barracks and
Hospital demanding to see him. She was however tossed from pole to
pillar and denied access to see him
for many days.

It is her evidence
that having established that her husband had been kidnapped and
detained by people who operate under the direct
command of the first
respondent she was apprehensive that his life was in danger, or that
he may even be dead.

Her apprehension
that her husband’s life might be in danger was fortified by among
others, the fact that he had not been brought
before a court of law
to be formally charged with having committed any offence.

His captors had
instead hidden him and were denying him access to his attorney and
members of his family were refused the right
to see him. In other
words, the applicant’s husband was unlawfully detained, having been
kidnapped and there had not been a
formal order or warrant issued for
his arrest and detention.

It is her story
that it was accordingly her right to approach this court to pray for
the reliefs herein sought in the notice of
motion.

This application
which was filed on urgent basis was moved before this court on the
2^nd
July 2007. Messrs Phoofolo and Motsieloa appeared for the parties
herein respectively. Respondents have not filed any opposing
papers.

The founding
papers here had already been served upon the respondents. The
applicant’s application was granted as prayed with
an additional
order that the said detainee Mr. Makotoko Lerotholi be availed
forthwith to court, for the court to physically see
him. The rule
nisi herein was returnable on the 5^th
July 2007.

However due to the
urgency and the greatly disturbing circumstances and facts herein
outlined by the applicant’s attorney and
by consent of the parties
attoneys, the applicant’s husband was produced before court for
this court to see him and to ascertain
his physical health condition
on that day/night.

It took two hours
from the time when this order was made and subsequently served upon
the respondents, in particular the 1^st
respondent to comply with the order that the said detainee be
urgently produced and or brought before this court.

It was highly
important and extremely urgent that such an order of court be issued
mainly because other than the fact that the detainee
had been
unlawfully kidnapped and unlawfully detained by members of the armed
forces who are directly answerable under the 1^st
respondent in the execution of their duties; this court had or was
duty bound to satisfy itself that the said detainee was still
alive
and in good health, and due regard being had to the then prevailing
circumstances in this country.

These were
life-threatening circumstances for all members of the public, and
those were worst circumstances for those like this
detainee who had
been so kidnapped without trace and in the circumstances herein
described in the notice of motion. I need not
repeat same but this
court strongly felt more duty-bound than ever to protect not only the
rights of this particular individual;
but even those of the members
of the public at large.

When ultimately
the said detainee was brought before this court, he was guarded by
heavily armed members of the Lesotho Defence
Force and about six of
them.

This was a very
abnormal and indeed a threatening situation. One must also mention
that it immediately became clear to this court
that there was an
intimidating attitude of those members of the Lesotho Defence Force
who had brought the detainee to court.

The detainee was
not armed with anything even though he was so heavily guarded by the
said members of the Lesotho Defence Force.
In fact he was helpless
and defenceless.

Having been
availed to court he told this court under oath the circumstance under
which he was kidnapped and explained to court
in graphic details the
kind of torture or assaults he was subjected to by members of the
Lesotho Defence Force, who it immediately
transpired had been the
ones who had kidnapped him and had been subjecting him to torture and
assaults since when he was kidnapped
in June – July 2007 for over a
period of eleven (11) days.

It must be
mentioned at this juncture that, indeed, and this is a matter of
common cause that the detainee herein question had surfaced
from the
Makoanyane Military Hospital wherein his alleged captors had had him
taken and kept under heavy guard by the Lesotho Defence
Force
members, and after he was brutally and extremely assaulted.

One must also
mention that this detainee was in severe pain so much so that he
could barely walk or speak.

In brief the
detainee’s evidence is that, and this is in line with the averments
of the applicant’s founding affidavit.

- It was on the
22^nd
June 2007 when he was forcefully abducted/kidnapped by members of the
Lesotho Defence Force who were heavily armed and who then
took him
into their institution, the Makoanyane Barracks.

- He told this
court, and that has not been denied that he was on that day the 2^nd
July 2007 brought before this court straight from the Makoanyane
Military Hospital where following his kidnapping and brutal assaults,

he was kept by his captors because he had been seriously injured. I
will deal with the injuries he had sustained in due cause.

- That indeed he
had been kidnapped while he was standing outside the Lakeside Hotel
by heavily armed members of the Lesotho Defence
Force.

- That at that
time, he had been standing near the Lakeside Hotel having a
conversation with certain unnamed people when his attackers
who were
traveling in about three vehicles suddenly had him so kidnapped.

- That his captors
had had their faces covered with woolen hats commonly known as
balaclavas;

- That in so
kidnapping him, they had pointed their guns at him and had threatened
to shoot and there and then kill him should he
try to resist being
kidnapped;

- It is his
further undenied evidence that he saw that his said captors were
wearing the army uniform;

- That once they
had forcefully put him in one of their vehicles, they swiftly had his
face covered with something such that he
could not see where he was
being taken to as the vehicle in which he had been loaded left the
Lakeside Hotel area;

- From
there, so goes his story, he was handcuffed and taken to some
mountains at the place he could not tell;

- He was then
subjected to severe assaults or brutal assaults all over his body
including private parts for all that time and his
captors used
various objects and engaged dehumanizing methods to assault him as
well as subjecting him to very cold weather conditions;
with his
hands handcuffed and face always covered such that he could not tell
whether it was day or night. In other words he had
lost sense of
time.

- That for all
that time while he was in his captors hands and was being
continuously assaulted and rudely insulted, he was being
accused of
having stolen guns belonging to the army from the army armoury.

- They ordered him
to produce same and or to disclose where he had taken same. That for
all that time he denied any involvement
in the theft of same; and
that he therefore did not know their whereabouts;

- His further
unchallenged evidence is that the brutal assaults upon him increased
on each day that he remained in his captors’
hands;

- That he was so
seriously injured and bruised that he could not eat, he could barely
swallow water; and lastly that he was unable
to walk on his own and
that he had to be supported by his captors;

- One may pause to
observe that, the above explains why he was so supported by members
of the Lesotho Defence Force when he was
taken into court;

- He further told
this court that he was in such great pain even as he sat down in
court; and that all of his body was painful;

- This court, did
indeed observe that he was continuously/uncontrollably shivering.
This he explained as being a condition brought
about by the
excruciating pains he felt as well as having been exposed to severe
cold weather conditions for so many days under
the circumstances he
explained to court;

- It is his
further unchallenged evidence that he remained in the hands and
custody of his captors in the above conditions from
the 22^nd
up to the 29^th
June 2007;

- He was, so he
told this court, taken to the Police Headquarters still in that
condition and his face covered and his hands handcuffed
on the 29^th
June 2007. He was not told why nor were any reasons explained to him
why he was taken there.

- In other words
no charge(s) of any kind were preferred against him by his captors;

- That he was for
the first time after being kidnapped, uncovered by the police who
examined him. He then only learned at that
time that the Lesotho
Defence Force members asked the police to detain him and give or
prefer undisclosed charges against him.
This, the police refused to
do because; so he told this court, they could not accept into their
custody someone who had been so
badly injured and who had not
originally been reported to them for whatever crime he was suspected
to have committed; and lastly
who they had already been informed had
been unlawfully detained after being kidnapped;

- In other words,
the police refused to be indirectly involved in the unlawful actions
of the applicant’s husband captors;

- Last but not
least on this detainee’s evidence is that, from the police
headquarters, he was taken to the Military Intelligence
offices. It
is not clear why and what then transpired thereat.

- What is clear
from his evidence, is that ultimately he was taken to the Makoanyane
Military Hospital situated in the Makoanyane
Barracks once again.

- Whilst here, he
was kept under constant guard with his feet chained or bound to the
bed despite being so seriously injured;

- This, so he told
this court, made it almost impossible for the medical doctors thereat
to properly, adequately and professionally
attend to him;

- In fact and to
be specific, it is his evidence that it in fact became extremely
difficult for the medical doctor(s) thereat to
dress up the wounds he
had suffered and sustained on his private parts and which wounds had
been inflicted by his captors;

- It is his
evidence that it took a tremendous effort and persuasion from some
other unnamed officers thereat that barracks, to
allow the doctor(s)
to dress his said wounds;

- Lastly, he told
this court that among other things and even though he was being
medically attended to thereat he feared for his
life whilst he was
there being attended by officers who were involved and or who were
under the command of his captors;

- He also told
this court that he was being denied by his captors visitation by his
family members whilst being there.

- Very lastly and
also equally importantly, he told this court that he had never been
given any charge ever since he was captured/kidnapped
and detained by
his captors and that none had been preferred against him even as he
sat in court;

- The said
detainee, and adding voice and force to the applicant asked the court
to release him from his captors so that he could
go and seek proper
medical attention because indeed his said detention thereat was
unlawful.

Having let
evidence of the detainee/his client, Mr. Phoofolo closed his case.
Mr. Motsieloa who appeared on behalf of the respondents
did not cross
examine Mr. Lerotholi.

In his address Mr.
Phoofolo asked the court to release this detainee from captivity of
his captors for the following reasons and
his application was not
opposed by Mr. Motsieloa who told the court that indeed, after having
heard Mr. Lerotholi’s testimony
and having further consulted on the
issues herein raised he had “no leg upon which to stand on, in so
far as this application
for the release of Mr. Phoofolo’s client is
concerned.”

Reasons in support
of this application were in a nutshell the following:-

- The said Mr.
Lerotholi has been unlawfully kidnapped/captured and subjected to
inhuman, brutal, degrading, barbaric, uncivilized
torture by his
captors.

- That his client
who has been seriously bodily injured by his said captors was
seriously ill and that there was no way his injuries
could heal while
he was in the hands of his captors.

- That the fact
that he has been admitted in the hospital wherein he is in constant
sight and under constant guard of his very captors
has and continues
to traumatize and adversely and psychologically affect him.

- That keeping him
any further under their custody would be a perpetuation and
countenancing by court of this unlawful capture
and detention by
members of the Lesotho Defence or the army members who have no right
whatsoever to even arrest anybody, let alone
a long retired ex-army
officer who was not subjected to any military law anymore.

- He pointed out
further that even those who are currently in the army as its members
should be lawfully treated; and that their
dignity has to be
respected even if they be suspected to have committed criminal
offences.

- He in fact
submitted, and correctly so in the view of this court that the army
and its members have no jurisdiction over his client.
This he says
explains why the army members resorted to kidnapping his client
instead of having him formally and appropriately
reported to the
police for whatever crime he was suspected to have committed.

- Lastly he
submitted, and still correctly in the mind of this court, and having
regard to all the surrounding circumstances of
this case, that his
client was entitled to be released from his said captors so also,
among other reasons, to enable him to seek
urgent medical attention
of a doctor of his own choice.

It is indeed a
very sad and regrettable state of affairs that in this age and
millennium practices or actions such as the ones herein
described are
still occurring in this country.

There is no way in
which these kind of actions as herein described can be allowed to be
carried out and or be perpetuated to continue
unabated.

All of the above
herein actions are unlawful and indeed uncalled for.

One must hasten to
observe and take judicial notice of the fact that it has since come
to the attention of this court that for some
time now, the Basotho
people have since the month of June 2007 been kidnapped, brutally
assaulted and subjected to unlawful harassment
and torture by members
of the army. This is unlawful and unacceptable whether or not the
above said actions are carried out by
the police. There are laws
which have to be followed by every one in this country whose duty it
is to maintain law and order.
The body which is vested with such
duty in this country is the Police Service. It is clearly and
unambiguously provided in Section
147(1) of the Constitution of Lesotho
that, and I quote:

“Police Service

147(1) There shall
be a Police Service for Lesotho that shall be responsible for the
maintenance
of law and order
in Lesotho.” (My underlining)

There is nowhere,
where the Constitution of this country has vested such powers of
arrest in the maintenance of law and order as
referred to herein
above with the Lesotho Defence Force.

One will readily
and immediately realize that the legislature has in its wisdom
couched the Provisions
of Section 147(1)
in mandatory terms. There is nowhere in this Constitution where the
legislature has mandated any member of the Lesotho Defence
Force to
perform the functions and or duties of the police.

Members of the
Lesotho Defence Force are not in strict terms even peace officers.
This point is buttressed by the meaning ascribed
to a “peace
officer” as it appears in Section
3
(the interpretation section) of
the Criminal Procedure and Evidence Act No.9 of 1981.

Nowhere throughout
the provisions of this Act and the Constitution of Lesotho have
members of the Lesotho Defence Force been vested
with duties of
maintaining law and order. This is the duty of the Police. There is
nowhere in our law where the words “police
officer” are used
interchangeably to include or embrace any member of the Lesotho
Defence Force.

Duties of the
police and the army personnel are distinctly different. As has
already been alluded to above, the duty of the police
is to maintain
law and order. That of the Defence force is to defend Lesotho.

Vide Section
145(1) of the Constitution of Lesotho
which provides that (I quote)

“There shall be
a Defence Force for the defence of Lesotho.”

Now in the instant
case, an individual has been unlawfully kidnapped, extremely and
viciously assaulted and unlawfully detained
by members of the Lesotho
Defence Force. If Indeed this detainee had violated the law in
whatever manner he should have been reported
to the police for the
police to deal with him in a lawful manner provided for in law and
that should have been done in a civilized
acceptable manner and
according to international standards due regard being had to the
rights of every individual as provided for
in the Constitution of
this country.

One need hardly
mention that regardless of the kind of a criminal offence/crime one
is suspected to have committed, every person’s
human rights and
privileges have to be protected and safe guarded even by the very
police officers who have been empowered by or
in law to effect arrest
in their quest to maintain law and order.

None of such
Lesotho Defence Force members are allowed under the provisions of the
laws that this court is aware of which are operating
in this country,
empowered to trample, with impunity upon the rights of any person who
is suspected to have been on the wrong side
of the law.

The phrase that
everyman is presumed innocent until proven otherwise is not an empty
phrase. Sadly in the instant case, the detainee
herein was viciously
dealt with and subjected to trauma and extremely humiliating
circumstances by those people whose duty is not
to maintain law and
order. It is in the best interests of the proper execution of the
duties of the police to emphasize that no
matter what, no one peace
officer has the right of whatever nature to treat any suspect in the
way in which the detainee in this
application has been treated.
Every person’s fundamental human rights and freedom have and are
safe-guarded by our Constitution
– vide Sections
4 and 8 chapter II.

It is for the
above reasons and also for the fact that the respondents did not
oppose this application that this court granted the
application
herein filed.

The application,
being in essence not opposed, no order as to costs is made.

In conclusion, one
must pause to observe and to note that, subsequent to the order of
this court dated the 2^nd
July 2007 hardly some 39 days later, yet a similar worded order was
granted for the applicant in respect of this detainee by my
brother
Monapathi J. for the reason that this detainee was once more re
detained even before he had had time to recuperate, and
in total
disregard of his ill health. Parties therein in that order granted
by my brother Monapathi J. are the same respondents
herein. This is
a regrettable and unfortunate state of affairs.

This makes mockery
of the law.

M.
MAHASE

JUDGE

For
Applicant : Mr. E. H. Phoofolo

For Crown : Mr.
Motsieloa