DEATH PENALTY IN LESOTHO.
By LEBOHANG MATSOSO
Just like slavery, in quite a number of jurisdictions death penalty has been considered as one form of inhuman and degrading punishment contrary to the constitutionally protected rights of individuals. Some legal scholars, religion practitioners and philosophers have in majority of cases been of the view that death penalty is not only unconstitutional but it is also replete with injustice. While in some jurisdictions it is argued that by executing convicted murderers that would deter some would be offenders from killing. In the words of the Arch Bishop Desmond Tutu , "To take a life when a life has been lost is revenge, not justice." While on the other hand George W Bush Jr had this to say, "I support the death penalty because I believe, if administered swiftly and justly, capital punishment is a deterrent against future violence and will save other innocent lives". Even the bible advocated for murder and other crimes like kidnapping , bestiality , adultery prostitution and rape . Several verses in the Quran support the use of capital punishment when used as a lawful means of seeking justice. For example, a favorite quote in the Quran regarding the death penalty states,"...Take not life, which God has made sacred, except by way of justice and law. Thus does He command you, so that you may learn wisdom" (6:151). Basically, this means that although murder is considered a transgression, it is permissible to utilize capital punishment when required by law. Disagreeing with John Locke who contends that people forfeit their right to life when they initiate a state of war with other people Cessare Beccaria openly condemned the death penalty arguing that the state does not possess the right to take lives, and secondly because capital punishment is neither a useful nor a necessary form of punishment.
It is an open secret that in Lesotho capital punishment is still in our statute books, it is as a result of which this paper is written to enquire as to whether death penalty is needed in Lesotho or not. This paper will therefore outline in detail the law and examine to what extent the Kingdom of Lesotho has incorporated international treaties which protect the right to life into its municipal law and application thereof. Challenges encountered and suggestions will thereafter be made. But before dwelling intensively on the subject matter it is equally important to discuss the legal system of Lesotho.
2. LESOTHO'S LEGAL SYSTEM
Lesotho is a landlocked country fully surrounded by the Republic of South Africa. The country's government is a constitutional monarchy with multi-party democracy and a prime minister. In terms of Section 44 of the Constitution of Lesotho the king is the head of the state but does not actively participate in political activities. To ensure compliance with the doctrine of separation of powers as well as checks and balances there are three independent branches of the government namely, Executive , legislator and the Judiciary. The kingdom of Lesotho does not have a single code containing its laws and as such it draws them from a variety of sources including which includes but not limited to Constitution, Legislation, common law, Judicial precedent, Customary law and authoritative texts.
The constitution of Lesotho came into force after the publication of the Commencement Order in 1993. According to the Constitution of Lesotho the constitution is the supreme law, and if any other law is inconsistent with the constitution; that other law shall to the extent of the inconsistency be declared void. By virtue of Section 70 of the Constitution, The supreme legislative authority vests in the parliament however in line with the doctrine of delegated legislation, parliament may however delegate such powers to authorities as it deems fit.
Lesotho also applies the Roman Dutch Law, which refers to unwritten law or law from non-statutory sources, but excludes customary law. The Common Law was introduced to Lesotho through General Law Proclamation 2B of 1884. This proclamation provided that the law to be administered in Lesotho shall as nearly as the circumstances will permit, be the same as the law for the time being in force in the Colony of the Cape of Good Hope. It would seem historically in the late nineteenth Century when Lesotho became under the control or protectorate of Britain, Britain imposed on Lesotho for the time being in force in the "Colony of the Good Hope" and not English law. Similarly the Roman Dutch Law became applicable also in Lesotho because Lesotho was administered as part of South Africa, as a result Lesotho inherited Roman Dutch Law from South Africa as its common law.
According to Poulter the effect of the above mentioned proclamation was to create a dual legal system made up of the received common law and the indigenous customary law to operate side by side in Lesotho. It also stands to reason that Lesotho's common law is to a larger extent the same as that of South Africa and as such the decisions and judgments from the Republic of South African courts are only persuasive and Lesotho courts refer to them in formulating their decisions as it will be shown hereunder.
3. PROTECTION OF RIGHT TO LIFE IN LESOTHO
Lesotho is a signatory to the United Nations Universal Declaration of Human Rights , the African Charter on Human and People's Rights, and in particular the International Covenant on Civil and Political Rights , all of which provide for the sacredness and sacrosanctity of the right to life. These international instruments recognize however, that states signatory thereto may impose the death penalty. For instance, that a state that has not abolished the death penalty may impose the death penalty but only pursuant to a final judgment rendered by a competent court. It is only the Second Optional Protocol to the International Covenant on Civil and Political Rights that enjoins all the state parties to take all necessary measures to abolish the death penalty which Lesotho is not a signatory to.
Section 5 of the Constitution of Lesotho provides that every human being has an inherent right to life and that no one shall be arbitrarily deprived of his life, but then adds that no one shall be regarded as having been arbitrarily deprived of his life where he dies in execution of the death penalty pursuant to a sentence imposed by a court of competent jurisdiction. Section 297 of the Criminal Procedure and Evidence Act provides for the imposition of the death penalty in respect of murder and treason while section 32 (a) (vii) of the Sexual Offences Act3 provides for the death penalty in respect of an accused person convicted of rape, who knowingly commits the crime knowing that or having reasonable suspicion to believe that he is infected with HIV. In terms of the Lesotho Defence Force Act 1996, the following offences are punishable by death: aiding the enemy, communication with or giving intelligence to the enemy, cowardly behavior, mutiny and failure to suppress mutiny with intent to assist the enemy. The death penalty cannot however be carried out in respect of a person below 18 years of age or a pregnant woman.
In the neighboring Republic of South Africa capital punishment was legal until 1995, when the constitutional Court declared it unconstitutional in the celebrated and time honoured case of S v Makwanyane . The constitutional court established that capital punishment was inconsistent with the commitment to human rights expressed in the Interim Constitution. The court's ruling invalidated and declared as unconstitutional section 277(1)(a) of the Criminal Procedure Act 51 of 1977, which had provided for use of the death penalty, along with any similar provisions in any other law in force in South Africa. The court also forbade the government from carrying out the death sentence on any prisoners awaiting execution.
Notably, the above mentioned law was seen in practice in the famous case of Solomon Kalusha Mahlangu who was hanged in 1979. Briefly the facts that precipitated his execution are as follows, Solomon Mahlangu who had joined uMkhoto weSiswe (Spear of the Nation) and received military training outside the country, returned to South Africa in June 1977, he together with his comrade, namely Monty Motloung, were confronted by police in central Johannesburg, and two people lost their lives and two injured in the shoot-out that ensued. Mahlangu and Motloung were later apprehended, severely tortured and mercilessly assaulted, with Motloung suffering from brain damage. Mahlangu was charged with two counts of murder, two of attempted murder and several charges of sabotage under the Terrorism Act. Despite Mahlangu's legal representative submitting that it was Motloung who wielded the gun, Mahlangu was charged under the apartheid-era legal principle of "common purpose", which ruled that he was equally liable for the deaths and injuries.
Mahlangu was found guilty and sentenced to death, but he appealed against his harsh sentence. The African National Congress launched a vigorous international campaign to mobilize governments to pressure South Africa to halt the execution of Mahlangu. Pleas for clemency by the United Nations, international organisations and influential figures fell on deaf ears. The Supreme Court of Appeal Court turned down Mahlangu's appeal and he was executed on 6 April 1979.
Closely related to the case of Solomon Mahlangu, in June 1983 Marcus Motaung, Jerry Mosololi and Simon Mogoerane (also known as the Moroka Three) - all members of MK - were executed. They were accused of engineering attacks on a police station in Orlando which resulted in the death of three policemen, the wounding of two and the destruction of police records. An international campaign to save the Moroka Three from execution was ignored by the apartheid government . Justice D. J. Curlewis (as he then was) ignored evidence of police brutality and passed a guilty verdict and imposed a death penalty on the accused men. He labelled them compulsive liars and rejected their testimonies detailing their torture.
On 20 December 1985, South African security forces raided Lesotho, consequently killing at least nine people. In retaliation, Andrew Zondo and several MK cadres placed a bomb at a shopping centre in Amanzimtoti which killed two children and injured 40 other people. Zondo was arrested and charged with five counts of murder. He was subsequently sentenced to death and refused leave to appeal, and was executed on 9 September 1986.
Fast forward to 1995, thanks to the case of S v Makwanyane death penalty became a thing of the past as it now belongs in the dustbin of history. The Court held that the rights to life and dignity were the most important of all human rights and the source of all the other personal rights detailed in Chapter 3 of the Interim Constitution. Chaskalson P, writing for the majority, concluded that...
"the death sentence destroys life, which is protected without reservation under section 9 of our Constitution, it annihilates human dignity which is protected under section 10, elements of arbitrariness are present in its enforcement and it is irremediable I am satisfied that in the context of our Constitution the death penalty is indeed a cruel, inhuman and degrading punishment.
One of the most important features of the law regarding the death penalty in Lesotho is with regard to the provision for extenuating factors as provided by Section 297(3) of the Criminal Procedure &Evidence Act which in clear and unambiguous terms stipulates that where an accused person has been convicted of a capital offence, the High Court may impose any sentence other than death where it is of the opinion that there are extenuating circumstances.
WHAT ARE THE EXTENUATING CIRCUMSTANCES?
As per the case of Letuka v R extenuating circumstances have been defined as ‘any facts, bearing on the commission of the crime, which reduce the moral blameworthiness of the accused, as distinct from his legal culpability. The Court of Appeal went further to mention the factors which the court should take into consideration in determining the existence of extenuating circumstances. These include the following; youth, liquor, emotional conflict, the nature of motive, provocation, sub-normal intelligence, general background, impulsiveness, a lesser part in the commission of the murder, the absence of dolus directus, belief in witchcraft, absence of premeditation or planning, "heavy confrontation" between the accused and the deceased before the murder, the rage of the accused.
By virtue of the above mentioned it logically follows that once the court has convicted the accused of a capital offence it must then go an extra mile and enquire whether there are extenuating circumstances which would warrant the imposition of a sentence other than the death penalty. More so because, it has been argued that any modern penal policy must take into account the severity of the crime, the interests of the community and equally importantly, the individual circumstances of the accused.
It is therefore clear that there is therefore an overriding responsibility and obligation on the court and its officers-Counsel-to make sure that phase two of the true process-the inquiry, that is, the presence or absence of extenuating circumstances-is conducted with due diligence and with an anxiously inquiring mind. While it is true that the burden of proving extenuating circumstances lies on the party asserting their existence, namely the accused, yet the Court of Appeal has gone out of its way to admonish the High Court for using the burden of proof imposed on an accused to avoid considering extenuating circumstances. As the court pointed out in the above cited case of Letuka v. R.
The provision on extenuating circumstances has had a very serious effect on the execution of death penalty in Lesotho. Owing to the fact that courts are always looking for and finding extenuating circumstances. On the few occasions that the High Court imposed the death penalty, it was set aside on appeal and substituted with life imprisonment on the ground that there were extenuating circumstances.
It is not a secret that Lesotho still retains the death penalty.There has been numerous death sentences passed in Lesotho both before and after independence in October 1966. For example, two senior chiefs were hanged for ritual murder at dawn on Wednesday 3 August 1949. One was Chief Bereng Griffith Lerotholi, principal chief of Phamong. The other one was Chief Gabasheane Masupha, principal chief of ‘Mamathe in Berea district.
In Regina v Khopiso Lerotholi . The facts of the case are briefly as follows the appellant who happened to be a chief at the area called Lesobeng was sentenced to death together with his accomplice in November 1953 for the ritual murder of one person namely Makotomane Mokale. It is on record that the chief wanted a "medicine horn" out of the deceased to fortify himself. In June 1963, the Court of Appeal confirmed the death sentence for ritual murder against Tsiu Lethola and others.
After independence in the 1970s and particularly in the 1980s there were several death sentences confirmed by the Court of Appeal. The case of Blyth Monanthane v Rex This was a premeditated murder in which the accused had boasted before the killing: "Today I am going to kill a European and a Mosotho." And so it happened. He smoked dagga in order to give himself Dutch courage. He then pushed the deceased, a European and a Mosotho, off the top of the Victoria building to their death. A witness testified at the trial that as both deceased persons fell, they made a sound which he at first thought was that of an aeroplane. It was a gruesome murder.The accused was sentenced to hang by Cotran CJ. The Court of Appeal confirmed the death penalty on 10thJanuary 1978.
In the case of Sello v Rex the appellant was sentenced to death by Cotran CJ for the murder of Ramatlaleng Sehloho who was a postal courier employed to carry a postal bag from the post office at Morija.
The accused met the deceased on the way to Mahuu. He stabbed the deceased no fewer than 18 times. Five of the stab wounds penetrated his heart and lungs. The accused then stole the deceased's post bag which contained registered mail and money. The Court of Appeal confirmed the death penalty on 12 January 1981.
In Lemphane And Others v Rex the accused murdered a night-watchman by the name of Monyake Hlalele at Fraser's Shop. He died from suffocation as they had tied a copper wire tightly around his neck. They then broke into the shop and stole large bundles of goods. Justice Mofokeng convicted them of murder and sentenced them to hang. The death sentence was confirmed by the Court Of Appeal on 10 January 1980.
Then came the case of Mohlalisi And Others v Rex The accused were convicted by Justice Mofokeng of the murder of Batsimang Mafifi who was a night-watchman at a shop at Makoae's in Quthing district. They had then broken into the shop and stolen various items of property. Justice Mofokeng sentenced them to hang. The Court of Appeal confirmed the death penalty on 13 October 1981.
The next case was that of Mokoena v Rex . The accused had shot at a policeman who was escorting him but had missed. After he had shot and missed for the second time, the deceased, Ngaka Moji, bravely grappled with the accused, apparently in an attempt to disarm him. In the process, the accused shot and killed him. The court convicted him of murder and sentenced him to death by hanging. The sentence was confirmed by the Court of Appeal on 8 May 1982.
In Mabaso And Another v Rex the court sentenced the accused to hang for the murder of a shop manager in the course of a robbery. The sentence was confirmed by the Court of Appeal on 25 April 1984.
Also, in Maseko v Rex Molai J sentenced the accused to hang for the murder of Lebohang Oscar Leluma. The Court of Appeal confirmed the death sentence on 26 July 1985. The court held that this was a premeditated and carefully planned murder. The evidence tended to suggest that the appellant was settling a gang score.
In Lefaso v Rex Lehohla J, as he then was, sentenced the accused to death by hanging for the murder of one woman. The accused had first set alight the reed house of the deceased. He then murdered her using a knobkerrie even when she was already lying on the ground. The Court of Appeal confirmed the death sentence on 26 January 1990.
In what has become the last death sentence to be confirmed by the Court of Appeal and, therefore, the last execution to date in this country in Nkosi v Rex , Lehohla J, as he then was, sentenced the accused to hang for the murder of ‘Makamohelo Tsola committed in the course of robbery and housebreaking. The murder was also preceded by rape. It was a terrible murder to say the least. The deceased was found lying naked in a pool of blood in her bedroom. She had sustained a broken jaw, amongst other injuries. The Court of Appeal confirmed the death penalty on 16 July 1993. The accused was executed on 25 November 1995 and it would seem for the first time in Lesotho, the hangman was imported all the way from Zimbabwe. Previously Lesotho had always imported the hangman from neighboring Republic of South Africa.
Thus, for example, in the case of Maliehe And Others Lehohla J, as he then was, had sentenced the accused to hang for the murder of Toloko Constantinus Kimane who held a fairly senior management position at Barclays Bank. The Court of Appeal found that extenuating circumstances existed, a point which was conceded by the crown. There had been great frustration by the bank employees leading up to the deceased's killing.
Furthermore, the court held that it would be unconscionable were the accused to be sentenced to death where the prime mover, namely, one Mothobi, and the actual killer went scot-free. Hence the Court of Appeal set aside the death penalty on 5 February 1997.
In Letuka v Rex , Guni J had sentenced the accused to death. This sentence was, however, set aside by the Court of Appeal on 4 February 1998 on the grounds that extenuating circumstances existed. The accused and the deceased had engaged in a fight which had started spontaneously. Such was the accused's rage at the time of the commission of the murder that he was totally out of control.
On 4 April 2007, the Court of Appeal set aside the death sentence imposed by the High Court on the appellant in the case of Peter Molise v Rex . The appellant had stabbed the deceased with a knife once in the collar bone area. The Court of Appeal comprising of Steyn P, Grosskopf and Smalberger JJA confirmed the verdict of murder but found that extenuating circumstances existed by virtue of the fact that it was a case of dolus eventualis. Furthermore, the murder was not premeditated.
In Basia Lebeta v Rex the High Court had sentenced the accused to death by hanging. In a judgment the Court of Appeal found that extenuating circumstances existed. In a nutshell, the facts showed that the accused and the deceased fought with stones and thereafter grappled with each other for possession of a stick which the accused had tried to use on the deceased. In the process, the accused produced a gun and fatally shot the deceased with it while the two men were still wrestling with each other. Although correctly found guilty of murder, there were extenuating circumstances by reason of the fact that the accused had been provoked. His young son had been assaulted by the deceased's group. They had also forcibly seized the accused's whip from his son. Thus, the accused had then proceeded to confront them on these incidents. Crucially, the learned judge had made a finding that the appellant was "visibly furious". The Court of Appeal also took into consideration the fact that the accused came from an unsophisticated rural background.
As was correctly said in the celebrated South African case of Rex v Fundakubi And Others "no factor, not too remote or too faintly or indirectly related to the commission of the crime, which bears upon the accused's moral blameworthiness in committing it, can be ruled out from consideration".
In some cases where the High Court had imposed the death sentence for murder, the Court of Appeal has found on a close analysis of the facts that the correct verdict should be culpable homicide and not murder. This is exactly what happened in the case of Moroa Ha-Busoe Chabeli v Rex .The facts showed that the appellant had merely exceeded the bounds of self-defence against the deceased who was the initial aggressor for that matter. In a judgment prepared by Smalberger and concurred in by Steyn P and Mofolo JA the Court of Appeal altered the conviction from murder without extenuating circumstances to culpable homicide. Crucially, the crown correctly conceded that the verdict of murder without extenuating circumstances could not stand. Hence the crown supported the verdict of culpable homicide.
CONCLUSION AND RECOMMENDATIONS
From the above mentioned it stands to reason that in as much as capital punishment is still legal in Lesotho, it can fairly be argued that it only exists in paper. What aroused my bone of contention is the fact that the last execution in Lesotho was from as far back as in 1995. It is therefore clear that Lesotho has only retained death penalty as a deterrent. However I vehemently differ with the believe that death penalty can act as a deterrent because there is not even an iota of evidence which proves that the death penalty is a deterrent to future murders. It is worth reiterating that Lesotho has not used the death penalty since 1992 and death sentences are normally commuted to life sentence. It is a fact, however, that no person has ever been sentenced to hang for either treason or rape in the mountain kingdom. But one must caution that the death penalty remains on the statute books for these offences. It is therefore safe to conclude that Lesotho is a de facto abolitionist.
We are still yet to see if Lehlohonolo Scott and his mother if found guilty will be sentenced to death or not. In that case the two accused persons who are mother and son respectively have been jointly charged with two counts of murder. The allegations against the two being that on or about January and July 2012 and at or near Koalabata in the district of Berea, the said accused did each or the other or both of them did unlawfully and intentionally kill Moholobela Seetsa and Kamohelo Mohata. The writer finds it highly unlikely that they will be sentenced to death, this is so because accused number one after allegedly escaping from lawful custody in Lesotho was found in South Africa where the Durban Magistrate Court extradited him back to Lesotho where he's now awaiting trial. In the 2001 case of Mohammed v President of South Africa and others the Constitutional Court dealt with the extradition of suspects under circumstances where they may face the death penalty. The court held that the South African government can under no circumstances extradite suspects for capital offences without obtaining an assurance from the jurisdiction requesting extradition that they will not be sentenced to death (or that, if they are, the death penalty will not be carried out).
It is also worth concluding that a sizeable number of judges of the Court of Appeal many of which come from the Republic of South Africa where death penalty has been abolished, despite the fact that the onus of proving existence extenuating circumstances rests with the accused, the courts more often than not go an extra mile to in search of existence of same. That by itself proves correct that indeed the courts are reluctant to impose the capital punishment as permitted by law. It is as a result of which it is suggested that death penalty be completely removed from Lesotho's statute books because its continued inclusion is nothing but a gigantic step backwards towards proper administration of justice and protection of the fundamental human rights as enshrined by the Universal Declaration of Human Rights and other International Treaties . Not only that, it needs not to be over emphasized that death penalty is an irreversible act, once the
In addition, in my own humble opinion the above mentioned South African case of S v Makwanyane has contributed to a larger extent in bringing to a halt the practice of hanging offenders. It is also not farfetched that death penalty is applied for unmitigated murders as it has been shown by the list of decided cases referred to above. Lesotho should therefore consider signing for the Second Optional Protocol to the International Covenant on Civil and Political Rights and then thereafter pass enabling local legislation to bring it into effect because Lesotho belongs to a dualist tradition and as such it views international law and domestic law as two separate legal systems hence domestication of international law by an Act of Parliament a prerequisite before international law can be applied.
S v Makwanyane 1995 (3) SA 391
Letuka v. R. 1991-96 LLB &LB 346
Regina v Khopiso Lerotholi 1926-1957 HCTLR 320
Blyth Monanthane v Rex 1978 LLR 447 (CA).
Sello v Rex 1980-1984 LAC 21
Lemphane And Others v Rex 1980-1984 LAC 3
Mohlalisi And Others v Rex 1980-1984 LAC 110
Mokoena v Rex 1980-1984 LAC 131
Mabaso And Another v Rex
Maseko v Rex 1985-1989 LAC 110
Lefaso v Rex 1990-1994 LAC 44
Nkosi v Rex 1990-1994 LAC 538
Maliehe And Others 1995-1999 LAC 258
Peter Molise v Rex C of A (CRI) NO.16/06
Basia Lebeta v Rex C of A (CRI) NO. 1/08
Rex v Fundakubi And Others 1948 (3) SA 810 (A),
Moroa Ha-Busoe Chabeli v Rex C of A (CRIJ NO.9/2007
Rex vs Lehlohonolo Scott and Another CRI/T/123/2012
Mohammed v President of South Africa and others
Cessare Beccaria: Of Crimes and punishments (1986)
Almer and Poulter, The Legal System of Lesotho 1972
Currie, Iain; de Waal, Johan (2005). The Bill of Rights Handbook (5th ed.). Cape Town: Juta & Company Ltd.
Moses OA Owori, The Death Penalty in Lesotho: The Law and Practice, p. 2, http://www.biicl.org/files/2197_country_report_lesotho_owori.pdf, published 2004 or later