ONE only needs to encounter a challenge related to law enforcement to realise that Lesotho still has a long way to go before uhuru.
It was not until I had to lodge a personal complaint against the Quthing Police when I discovered that the Police Complaints Authority (PCA) in is not an authority in the true sense. An English expression says don’t judge a book by its cover while a Sesotho adage says “Metse e metle liotloana!” I had raised my fist in the air to salute the PCA initiative thinking that it was empowering the people but little did I know that for the past 18 years people cannot directly refer complaints to the “authority” but have to do so via the Police minister or the police commissioner.
In this article, I discuss without prejudice my personal experience of lodging a complaint at the PCA which led me to this discovery. This does not suggest that complaints are not entertained, but the prescribed route that they take is a cause for concern in a democratic dispensation.
In the recent past, the state has established agencies as regulators and autonomous bodies. For instance, the Lesotho Revenue Authority (LRA) administer all matters pertaining to revenue collection and can sue or be sued. The Lesotho Communications Authority (LCA) manages all issues related to communication and sanctions law breakers. The Lesotho Electricity and Water Authority (LEWA) mainly controls operations of Water and Sewerage Company and Lesotho Electricity Company. In all their operations, these regulators deal directly with both members of the public and the service providers. The question of how efficient is each authority can be discussed in another article.
What is an authority?
The word authority means a person or institution that has power to perform in a particular way. A person in authority is duly empowered by laws and or regulations to act within certain parameters. Examples of such persons are directors, ministers, judges and presidents just to mention a few. Authorities have the power to make binding decisions on all issues within their jurisdiction. The LRA, the LCA and the LEWA are fully functional authorities unlike the PCA.
One of the most distinguishing facts about the PCA is that it does not have a specific statute establishing it like the LRA, LEWA or the LCA. The PCA was established by Police Service Act of 1998. It automatically means the agency is not autonomous because it is part of the police service. Section 22 (1) of the law states that “there shall be a Police Complaints Authority comprising a chairman and at least three other members.”
It is of interest to note that the number of the PCA’s senior members is not fixed and is even. The word authority is not interpreted in the Act; as such it leaves much to be desired. The interpretation could have been useful because in this statute there are two authorities that core exist; the Police Authority and the Police Complaints Authority. The latter is subordinate to the former. The Police Authority refers to the minister. The question is why did the statute call the PCA an authority in the first place?
In the absence of any clear explanation, we are only left with examining the advent of the PCA. Motloli (2013) in his paper suggest that the Police Service Act came as a reflex action of former prime minister Ntsu Mokhehle’s regime to reform the Royal Lesotho Mounted Police (RLMP) to be people oriented police. The RLMP had several incidents which exposed the institution’s lack of control by civilian authority; the 1994 police strike, the 1995 go-slow and the 1997 mutiny. Thus the Act was inelegantly drafted.
Section 22 (3) outlines that the “the Police Complaints Authority shall have the responsibility for investigating and reporting to the Police Authority on any complaint referred to it by the Police Authority or the Commissioner, which is a complaint from a member of the public about the conduct of a member of the Police Service. Despite this awkward arrangement, the PCA makes no effort to educate the public about its operational arrangement. On the day I submitted my complaint, there was another gentlemen who had also gone to the PCA offices to submit his complaint.
Conflict of interest
There are two major concerns that do not sit well with me about this structure. Some incidents are perpetrated by the police in the course of their duty probably instructed by the commissioner; how possible is it that the commissioner can refer himself to the PCA?
In 2014, the then commissioner of police issued a statement that all police in the country were doing work on his behalf and all their investigations were to be sanctioned by him. This was because the police were investigating a case which could implicate a relative.
In 2003, the government resented the textile workers led by Factory Workers Union (FAWU) embarking on a mass demonstration against the minimum wages proposed by the wages board for the fiscal year 2003/2004. The union was given a permit to proceed with the demonstration. In the course of the demonstration, the police suddenly declared the march had breached the agreed conditions and then ordered the determined masses to disperse unceremoniously. That attempt resulted in the death of six workers with a couple others injured. The conduct of the police can be attributed to the government influence considering the sarcastic manner in which the then minister of police responded to the questions about the march in the national assembly.
Six years later in 2009, the National University of Lesotho (NUL) students waged a protest against the delayed accommodation allowances for off-campus students. In an unmatched militant response to contain the unrest, the police fatally shot Matšeliso Thulo. It was only on the following day that the police came on campus with riot equipment. The question that we asked ourselves was why did the police wait for a loss of life to do the right thing? The loss of life which could have been avoided is inexplicable!
The then deputy prime minister and minister of police at the funeral said the students should take note of the fact that police work with rifles which have been designed to end lives. At a political rally in Mafeteng the then prime minister pleaded with parents to reprimand their sons and daughters against engaging in demonstrations and strikes because their allowance had already been processed at the time they embarked on the strike. The two statements showed no remorse on the side of the state, but rather exonerated the police.
Establishment of the PCA
Subsequently, section 22(4) clearly indicates that the staff of the authority are public servants. This means they fall under the Ministry of Police and as such the master and servant relations exist. It is doubtful that they could attribute the atrocious acts of police officers to the minister, rather they would test the rationality of the individual police officer. In February 2017, on Radio Lesotho Ho Tloha Tele, when the chairperson of the PCA, Mahlape Morai was asked about the possibility of both the commissioner and the minister giving instructions that misdirect the police officers on the ground; she dismissed that line of argument. Her argument was simply that the duo are administrative figures who do not deal with operational details. As such, they cannot give direct instructions. History can prove Dr Morai’s line of argument is inconsistent with the reality!
The fact that some of the investigators at the PCA had been police officers themselves serve both as an advantage and a disadvantage. It becomes an advantage when testing reasonableness of a police officer’s actions, because it would apply basic police training. Contrarily, if the investigating officer can be realistic and fill the shoes of the police officer in question, a different conclusion would be reached.
The only institution which I know to have timelines for the settlement of disputes is the Directorate of Dispute Prevention and Resolution (DDPR). Once a case is heard by the DDPR for arbitration, it must be resolved in not more than 30 days. I lodged a written complainant to the PCA in January 2017 and it is now the end of July. I have not received even a mere acknowledgement note. I am aware of other cases which the PCA has been handling. One concerns the Ha Noha community in Thaba-Tseka and another Vuka Mosotho community in Leribe. It took the unit more than one year to complete each of them.
Reforms are needed for the PCA to be a legitimate institution in the eyes of Basotho, especially victims of police brutality, torture, ill-discipline and abuse of power. In a democratic dispensation, the question of redress where grievances are laid against state institutions like the police service should be dealt with timeously, transparently and impartially. There is a gap in having an independent police authority, so that when there is a need to review the work of police officers that can be done with much ease. Thamae Lenka (2010) in his thesis says “there are no adequate control mechanisms put in place to regulate police powers in Lesotho compared to other jurisdictions.” He further argues that, “some jurisdictions, such as the United Kingdom, the Republic of South Africa and the United States of America have some advanced police intervention programmes aimed at improving and constantly checking police work.”
We cannot reform the PCA and leave out the police training to be of modern times. Harvest FM Saturday morning phone-in programme of July 16 lamented the conduct of police in road traffic issues. The programme highlighted that there is a tendency among police officers to cover each other’s tracks. The police usually use force even on trivial issues whether in dealing with real serious criminal issues or handling minute issues such as road traffic offences and land disputes.
I have a conviction that this agenda of reforms should be approached like an engine overhaul.