Domestic implementation of international human rights standards against torture in Lesotho

Abstract

Absolute prohibition of torture is a peremptory norm of international customary law that all states must comply with. Obligations to prevent and prohibit torture, to punish its perpetrators and to provide adequate redress to victims of torture, as well as to report on measures taken against torture are contained in several international human rights instruments to which Lesotho is a party. A key obligation contained in these instruments is for state parties to harmonise their national legal systems, as well as practices with standards contained in each instrument. Thus, the main question, which this thesis investigates, is the extent to which international human rights standards against torture are effectively implemented in Lesotho’s domestic legal regime. In order to respond to this question, the thesis seeks to answer four sub-questions aimed at identifying international human rights standards and states’ obligations against torture, to determine the relationship between international law and the legal system of Lesotho, to evaluate Lesotho’s legal and institutional frameworks against the international human rights standards identified and lastly, to extract from Lesotho’s political history the extent to which torture is practised in Lesotho, factors, which influence its commission, as well as those, which inhibit effective implementation of the international standards against it. In Chapter 1 of the thesis, the research is introduced, a definition of torture under both international human rights and international criminal law is provided and the structure of the thesis is set out. In Chapter 2, the history of international prohibition of torture is first discussed so as to provide the context in which the international standards against torture were adopted, and then the obligations against torture, which each international human rights instrument adopted by the United Nations (UN) and African Union imposes on state parties to them, are extrapolated. The overall states’ obligations in these instruments are: the obligation to prevent and prohibit torture, to prosecute and punish its perpetrators and to provide redress to victims of torture, as well as to report on measures taken against torture. In Chapter 2, the specific ways in which states are mandated to implement these obligations are also discussed. In Chapter 3, the extent of implementation of these obligations in Lesotho’s legal and institutional frameworks are assessed, and in Chapter 4, their practical implementation by Lesotho’s three law enforcement institutions, the Lesotho Mounted Police Service (LMPS), the Lesotho Defence Force (LDF) and the Lesotho Correctional Service (LCS) are evaluated. An analysis of Lesotho’s legal system in Chapter 3 reveals that the legal system is receptive of international law and that judicial activism has led to the application of international human rights instruments by the courts of Lesotho without probing into their domestication. Therefore, similar arguments may be used to apply Lesotho’s international human rights obligations against torture in the legal system of Lesotho. A further review of the legal and institutional frameworks against torture in Chapter 3, as well as the practice of torture in Chapter 4, leads to a conclusion that the legal and institutional frameworks are weakened by both political instability and failure to implement international human rights standards. Failure to prohibit torture as a distinct crime and the granting of immunity and amnesty for politically motivated torture have resulted in the continued practice of torture, impunity for perpetrators and a lack of adequate redress to victims of torture. In the thesis, a multi-pronged approach to addressing these challenges is recommended. Firstly, the national legal framework must be reformed and harmonised with the international human rights standards against torture. A specific anti-torture legislation must be enacted. The existing laws must be reviewed and amended to incorporate Lesotho’s obligations under the relevant international human rights instruments, such as the UN and African regional levels. Laws, which are in conflict with the international standards, must be repealed and those not yet enacted, such as the Amnesty Bill, 2016 must not be enacted. Secondly, Lesotho’s institutions and offices, such as the LMPS, the Police Complaints Authority, the Director of Public Prosecutions, the Office of the Ombudsman and the Judiciary must be capacitated through training and alignment of their mandates with international standards in order for them to effectively investigate allegations of torture, to prosecute perpetrators, to impose appropriate penalties on those convicted and to award reparative remedies to victims of torture. Because of the link between the prevalence of torture and the involvement of the military in Lesotho’s political instability, the dissolution of the LDF as a torture prevention measure is further recommended.