Constitution 'is the boss', Lesotho judge tells police

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Tsolo Tjela is an unlikely candidate for police assault and brutality. At 51, he is solid citizen of Lesotho and chairs the Ha Likhotolo Village Crime Prevention Committee in the district of Mafeteng.

Tjela recently went to court seeking damages after he was rounded up by police, herded with other members of his committee to the middle of the village, and then beaten with sticks and guns. Among other degrading practices, the police forced them to squat and jump and beat them while they did so. Then they were told to lie down, and were beaten again.

Medical evidence backs up Tjela’s testimony that he suffered injuries on his buttocks, waist and eye. He bled from his nose and experienced terrible pain as he walked – pain that was so bad he needed a stick to hobble around.

Outpatient

In his evidence he said he had been admitted to hospital as an outpatient and suffered temporary disability for three weeks. Among others, he was outraged by the fact that there were women as well as men who watched as police tortured them, and that those watching were fellow members of his committee.

The other side in this case – the officer commanding Mafeteng Police Station, the commissioner of police and the attorney general – then gave up, closing their case without leading any evidence.

Judge Sakoane Sakoane noted that Tjela’s evidence was not disputed by the defendants. In their plea they deny he was assaulted. They say he was ‘merely forced to lie down’ because he was resisting a search. But, said the judge, this was not backed up by evidence. There was thus no explanation or justification for the behaviour of the police. ‘Without any hesitation, I find that the liability of the defendants is established.’

Guns

The police had said they had gone to Tjela’s village to search for guns. They did not find a single firearm. So, torturing him was ‘an exercise in sadistic and terrorist behaviour’, commented the judge.

‘They inflicted pain, shock and suffering because of their anger and frustration in failing to find what they were looking for. The plea does not even pretend that they had any search or arrest warrant. Such conduct is anathema to every value of the Constitution and human decency.’

These comments by the judge are just a prelude to what comes next: in effect a praise poem dedicated to the constitution. It was ‘not a mere paper or legal nuisance that the police officers can kick away with their boots,’ the judge said.

Soul

‘It [the Constitution] is the conscience, mirror and soul of the Basotho. It is a pantheon of values and guarantor of the solemn promises of their rights and freedoms as guaranteed.

‘It matters not how popular a ruler or politician is, nor how powerful be the military arsenal and awesome police power under the ruler’s command. The Constitution is the boss.’

In an obvious reference to persistent claims of torture by police, the judge commented: ‘Despite what the Constitution commands in uncompromising language … that there shall be no torture, inhuman or degrading treatment, the police service continues to brutalise citizens because it is cursed by words of a Prime Minister who, to paraphrase him, says to them, “Nay, beat them hard, but not in public view. When you emerge in public view, smile with them, don’t beat them.”

Crime prevention

‘It is utterances like these by the head of the Executive which help let loose police officers on this defenseless nation – all in the name of crime prevention.’

Crime prevention and respect for human rights went together in the fight for justice. Any order given to police to violate a human right in the course of prevent crime was illegal and had to be disobeyed, he said.

‘The police are, therefore, sufficiently warned: “Forever wear the values of the Constitution on the epaulettes of your uniforms.”'

Pernicious culture

‘There shall be no further warnings hereafter except uncompromising judicial eradication of the pernicious culture of police brutality.’

How would the key issue of damages be resolved in this case? The police had ‘behaved like terrorists in uniform and not in a manner befitting proud enforcers of the law’. There had been no justification for the police treatment of Tjela, and he deserved ‘full compensation’.

Despite many judgments over more than 25 years against the police in cases where they had brutalised civilians, they had not heeded the words of the judiciary.

Piece of paper

For the police ‘the Constitution is a mere piece of paper and not a game-changer. This court’s duty is to give them a rude awakening. They must shape up to be good, loyal servants of the law who do not resort to violence and brutality in combatting crime. They must listen to the voice of the Constitution and not the sirens of political power.’

Recent awards of about R350 000 did not seem to have any deterrent effect and they continued to torture and maim defenceless citizens. In all, the judge therefore awarded damages of R490 000 plus interest at 12% and legal costs.

The judge also ordered that a copy of the decision should be brought to the attention of the Police Complaints Authority, the Police Authority and the Director of Public Prosecutions to follow up the criminal case that Tjela had opened against the ‘rogue’ police officers who had assaulted him – and to follow up on their ‘removal’ from the police service.

Crucial

This is a crucial judgment. The police have for many years been accused of behaving as though they are above the law. Comments such as that quoted by the judge that have been attributed to the immediate past President, Thomas Thabane, only made matters worse.