Compiled by Barbara Whittle
From left: Africa Director at the International Commission of Jurists, Arnold Tsunga; past President of the Law Society of the Free State, Vuyo Morobane; Law Society of South Africa Co-chairperson Busani Mabunda; Lesotho attorney, Tumisang Masotho and Law Society of South Africa Co-chairperson Richard Scott, outside the Maseru High Court in December.
Law Society of South Africa (LSSA) Co-chairpersons, Busani Mabunda and Richard Scott, joined a number of other observers at the Maseru High Court on 2 December 2015, in solidarity with Lesotho practitioners who had reported threats and harassment against themselves and their clients, being Lesotho Defence Force (LDF) soldiers who were alleged to have mutinied earlier in 2015.
The LSSA was informed by the Law Society of Lesotho that defence lawyers had been experiencing threats to themselves and their families, court orders had been ignored and judges intimidated. Lawyers had also been denied access to their clients.
In a press statement in November 2015, the LSSA called on the Lesotho authorities to uphold and respect the rule of law, the independence of the judiciary and of legal practitioners at all times. Also, the LSSA stressed that the Lesotho authorities must ensure that due process of the law is respected in this matter without subjecting the accused to any form of abuse of their rights, which included the right to have access to legal representation.
The Co-chairpersons said: ‘The Lesotho authorities must safeguard the right of legal practitioners to practise freely without fear of intimidation, arrest or assault. Lawyers must be able to consult freely with their clients to provide effective representation. What our colleagues in Lesotho are being subjected to represents an infringement of the United Nations Basic Principles on the Role of Lawyers, which state that “Governments shall ensure that lawyers … are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference … and … that lawyers shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognised professional duties, standards and ethics”.’
The President of the Southern African Development Community Lawyers’ Association (SADC LA), Gilberto Caldeira Correia, also expressed the concern of the regional body about the threats being directed at lawyers and the judiciary in the course of their work in Lesotho. He called on the legal profession in Southern Africa to stand up in solidarity with their counterparts in Lesotho, to defend the rule of law and independence of the judiciary in that country and to advocate for fair trial rights for the 23 soldiers.
He stated in a press releases: ‘These threats have been simmering for a long time but were brought to the fore following the arrest, detention and court martialling of 23 members of the Lesotho Defence Forces (LDF) on charges of mutiny in May 2015. The threats that are directed at the judiciary and the legal profession in Lesotho present serious challenges to the independence of the judiciary, the legal profession and the observance of the rule of law in that country.’
SADC LA noted that, since the arrest of the 23 soldiers, at least six lawyers had been seized with the case at various stages. They had all faced different kinds of threats, harassment and intimidation from members of the LDF. One of the six had been forced into exile and was in South Africa. The other five lawyers, though still in Lesotho, had been confronted by members of the LDF and told that they were being ‘watched’ or that they were ‘next’. This had the effect of undermining the rights of the lawyers to practise their profession without fear or intimidation and the rights of the accused persons to legal representation of their choice.
SADC LA explained that a ‘hit’ list had been circulated on social media and the names of two of the six lawyers were on that list. Although the ‘hit’ list could not be attributed to the state or any of its organs, the lawyers concerned were apprehensive given that two people whose names were on a previous ‘hit’ list circulated on social media had been killed soon after the circulation of the list.
Mr Correia said: ‘The SADC LA therefore calls upon the State to investigate the origins of that “hit” list and bring those responsible to book. This will help in assuring the lawyers representing the 23 soldiers that they have got the necessary protection from the State. The United Nations Basic Principles on the Role of Lawyers calls on authorities to ensure adequate safeguarding of lawyers where their security is threatened as a result of discharging their functions, a responsibility that the Government of Lesotho should assume. The arrest of the 23 soldiers has also underlined the continued disregard of the rule of law and threats to the independence of the judiciary in Lesotho. On two occasions, the courts have ruled that the 23 soldiers must be released on “open arrest”, a form of bail. On both occasions, the LDF have refused to comply with the court orders. Instead of releasing the 23 soldiers, the LDF proceeded to place them in solitary confinement thereby subjecting them to torture, inhuman and degrading treatment. This disregard for court orders has the effect of undermining the independence, effectiveness and authority of the judiciary and the justice delivery system in Lesotho’. The SADC LA called on the Prime Minister of Lesotho to ensure that the LDF obeys court orders and are not portrayed as an institution that is above the law.
Compiled by Barbara Whittle, communication manager, Law Society of South Africa, barbara@lssa.org.za
This article was first published in De Rebus in 2016 (Jan/Feb) DR 14.
