MASERU – A BILL tabled in parliament to address the lack of a substantive law dealing with domestic violence has attracted criticism, with some analysts and activists saying it fails to adequately address a scourge that has affected Lesotho for decades.
Others said though in need of improvement, the Bill makes strides in tackling domestic violence, which has become a cancer in the country.
Despite being one of the countries most affected by domestic violence, Lesotho currently has no law directly addressing the problem.
To plug the gap, the Ministry of Gender, Sports and Recreation recently initiated a draft Bill which was tabled in parliament by Minister Likeleli Tampane.
The ministry’s Chief Information Officer, Maqalika Matsepe, said the Bill is a result of wide consultations between the ministry and relevant stakeholders and “beneficiaries”.
“It is a broad exercise involving all stakeholders,” said Matsepe.
He said the Bill is currently being taken to communities to get feedback from the people.
“MPs, along with gender ministry officers, are this week out in the villages to verify whether indeed it’s necessary,” he said.
Some human rights lawyers said the Bill contains loopholes that should be addressed before it can be made law.
Advocate Lineo Tsikoane, from NAIRASH Legal Support, is one of those who criticised the Bill.
“They should let themselves think beyond binary terms,” she said.
She cited section 5 of the Bill which states that an application for an interim protection order may be granted without notice or outside court hours.
It should not require a seasoned lawyer to obtain an interim protection order on 2021.
“The expense of an urgent application is prohibitory. It’s archaic to have this kind of condition in 2021. If it’s interim it should be interim, prompt and hassle free for it to be accessible to everyone.”
She noted that although the interim order can be issued outside court hours, it still requires someone who has acquired the services of a lawyer to access it.
“Financial issues aside, there still has to be certain knowledge about law and this is elitist. We need to make use of opportunities that other countries have shown us, such as what happens in South Africa where it is issued at a police station,” said Advocate Tsikoane.
Advocate Tsikoane questioned section 6 of the Bill, querying why one should wait for a commission of a transgression to get a protection order.
“What use is a protection order if I have to be transgressed first?”
“Same people, just a different name,” quipped Advocate Tsikoane while commenting on section 16 (1-3) of the Bill relating to the establishment of a family court.
“We risk having the same results. Doing the same thing twice and expecting a different result? Why are we not going out to properly establish and constitute family courts?” she queried.
She said statistics between 2003 and 2013 showed that 86 percent of women have at some point experienced violence in their lives.
“Why are we doing the same thing and expecting different results? Why doesn’t the Bill require a properly constituted, trained and capacitated family court if we are really saying we want to fight this?”
She said there are limitations in section 18, which relates to counselling.
“I am not disputing its relevance but it has limitations and it has to be broader. A tailor-made solution such as counselling is not the only way, was it so integral that it had to have its own section? This denotes that everything can be solved by just talking…”
“There is a lot of burden beyond counseling. Domestic violence has a lot more to do with poverty. Just being through counselling doesn’t mean one’s life or circumstances change automatically. We shouldn’t have specifically mentioned counseling. Rather, we should have a complainant-responsive remedy which can be counselling, separation support, housing etc.”
She said the Bill is not progressive particularly section 19, which deals with restorative justice.
“There has to be guidelines; power should be factored to have boundaries,” she said.
As a deeply patriarchal society, the composition of the council is “Ok” but in constituting such councils the law should pay special attention to the complainant, gender bias and stereotyping.
“There has to be boundaries and guidance.”
She said section 22 of the Bill on non-compliance with restorative justice resolution burdens the complainant.
“Why should a complainant bear so much burden?”
Advocate Tsikoane suggested that the draft team should “consider opinions of non-gender conforming persons, victims and survivors, ordinary Basotho, organisations and institutions that deal with survivors and institutions that empower and create an equal society”.
“I feel this was a noble effort but it’s too late, it reads like a Bill from 1993. It doesn’t reflect the strides that we have made as a nation with regards to what we have seen and observed. We don’t have to think out of the box as this has been the reality of many Basotho and it has to reflect that,” she said, adding: “Personally, I think the Bill should be thrown away.”
“Stakeholders should be assembled, break it apart for 10 days, give them a break for public consultations, bring them back for another 10 days, consolidate, take them back again to the community and there will be a comprehensive, more inclusive Bill that will represent the Lesotho of today.
Let our law reflect the path that we have travelled,” suggested Advocate Tsikoane.
The People’s Matrix, in collaboration with Advocate Rethabile Mathealira-Molapo, suggested that the definition of domestic violence should include intimidation, harassment, stalking, damage to property and other acts that constitute domestic violence.
“The definition (contained in the Bill) is too limited,” she said.
However she commended the Bill for recognising the discrimination experienced by certain groups of people by virtue of their age, disability, sexual orientation and gender identity.
“The list has been extended to be more comprehensive to cover sex so as to include intersex people, gender expression, which is the way people express their gender identity through behaviours, including language, body language, dress, or mannerisms. We have included economic activity should a person be violated for their economic activity on the basis that it is not lawful legal activity,” she said.
Mathealira-Molapo also commended the Bill for seeking to abolish some of the existing abusive practices that degrade children and women such as forced child marriages.
“We need to provide protection for both children and adults forced into marriage as the most important element of any marriage should be consent,” she said.
She suggested that interpretation should include abusive practices, domestic violence acts between any number of people regardless of relationship, ability or disability, age, sex, sexual orientation and gender identity and expression.
Portions of the Marriage Act providing for the marriages of children should be repealed.
“This Act should provide an opportunity to harmonise all laws dealing with the affairs of children, especially with regard to marriage and all forms of sexual activity and sexual violence involving children,” Mathealira-Molapo said.
“If courts other than the family court are permitted to deal with domestic violence acts there may be inconsistencies in sentences handed down. Basotho courts’ jurisdiction is to apply Customary Law and there may be resistance to apply the Domestic Violence Act. This may deny victims the protection they so desperately need.”
She also suggested that the family court be a court at the level of the Magistrates Court, with reviews and appeals lying with the High Court and the Court of Appeal respectively.
“It is recommended that cases of domestic violence be exclusively adjudicated over by the family court, which may be housed even at the local court premises. The proposed definition is too limited, namely on one form of abuse and the people it affected,” she said.
She recommended changing the wording to avoid making the interpretation too restrictive.
“This is to offer better protection for people who may be living together in an intimate relationship regardless of sex, gender, sexual orientation or expression.
She said physical abuse should be any act or conduct that is of such a nature as to cause bodily pain, harm or danger to life, limb or health or which impairs the health or development of the victim; and includes assault, criminal intimidation or criminal force.
“The original definition should end with “and other forms of physical harm” instead of “and other essential…”
Regarding sexual abuse, she suggested an addition: (e & f) any conduct that abuses, humiliates, degrades or otherwise violates the sexual integrity of the complainant or a related person, regardless of sex, sexual orientation, gender, gender identity or expression, whether or not such conduct constitutes a sexual offence as contemplated in the Criminal Law (Sexual Offences Act, 2003 (Act No. 3 of 2003) and Penal Code Act, 2010 (Act No. 6 of 2012).
She said stealthing would ensure that where consent is given on the basis that a condom be used during intercourse, and the alleged offender either removes the condom or does not put on a condom at all, and intentionally does not inform the other person, then the other person’s consent is taken to have been negated.
“This is to take into account that emotional and psychological abuse often manifests itself in physiological symptoms,” she said.
Stealthing refers to the conduct of a man who removes a condom midway through sex despite agreeing to wear one when intimacy started.
On section 7 of the Bill relating to contents of a protection order, she suggested adding the nature of domestic violence and relationship in relation to the vacating of shared residence.
“Entering a residence shared by the complainant and the respondent: Provided that the court may impose this prohibition only if it appears to be in the best interests of the complainant taking into consideration the nature of the domestic relation in relation to rights to the ownership of property.”
Other suggested additions are on the seizure of arms and dangerous weapons.
On Section 9.(1) the court must order a member of the Lesotho Mounted Police Service to seize any arms or dangerous weapons in the possession or under the control of a respondent, if the court is satisfied on the evidence placed before it. The evidence includes any affidavits supporting an application referred to in section 4(1), which are that (a) the respondent has threatened or expressed the intention to kill or injure himself or herself, or any person in a domestic relationship, whether or not by means of such arm or dangerous weapon; or (b) possession of such arm or dangerous weapon is not in the best interests of the respondent or any other person in a domestic relationship. This would be a result of the respondent’s (i) state of mind or mental condition; (ii) inclination to violence; or (iii) use of or dependence on intoxicating liquor or drugs.
In part IV related to institutions, section 10 of the Bill on duties of a police officer in respect of domestic violence, she suggested the following: 10(1) … social workers and relevant expertise
10(4) … gender-sensitive and gender affirming officer instead
10(7) request for clarity of context of authority
10(8) accountability for incompetent service.
“Police officers are not primarily experts in this field and are further often transferred out of units. The social worker can work hand in hand with police officers for purposes of investigations,” she said.
Mathealira-Molapo said in section 11 on records of domestic violence, section 11(2) should ensure that original forms must be sent to the commissioner of police monthly. Section 11(3) should ensure that statistics are compiled quarterly and presented to parliament quarterly, she suggested.
Lawyer in trouble
A local lawyer, Advocate Molefi Makase, is in soup after he flew into a rage, insulting his wife and smashing her phone at a police station.
It was not possible to establish why Adv Makase was so mad at his wife. He is now expected to appear before the Tšifa-li-Mali Magistrate’s Court on Tuesday.
Earlier on Tuesday, he was released from custody on free bail on condition that he attends remands.
Magistrate Mpotla Koaesa granted Advocate Makase bail after his lawyer, Advocate Kefuoe Machaile, pleaded that he had to appear for his clients in the Court of Appeal.
Advocate Makase is facing two charges of breaching peace and malicious damage to property.
According to the charge sheet, on October 5, 2023, within the precincts of the Leribe Police Station, Advocate Makase allegedly used obscene, threatening, or insulting language or behaviour, or acted with an intent to incite a breach of the peace.
The prosecution alleges that the lawyer shouted at his wife, ’Mamahao Makase, and damaged her Huawei Y5P cell phone “with an intention to cause harm” right at police station.
During his initial appearance before Magistrate Koaesa, Advocate Makase expressed remorse for his actions and sought the court’s leniency, pleading for bail due to an impending appearance in the Court of Appeal.
His lawyer, Advocate Machaile, informed the court that an arrangement had been made with the police to secure his release the following day, as he had spent a night in detention.
Advocate Machaile recounted his efforts to persuade the police to release him on the day of his arrest.
He noted that the police had assured them of his release the following day, which indeed came to fruition.
Following his release, he was instructed to present himself before the court, which he dutifully complied with.
Advocate Machaile underscored Advocate Makase’s standing as a recognised legal practitioner in the court.
Notably, he was scheduled to appear in the Court of Appeal but had to reschedule his commitment later in the day to accommodate his court appearance.
Advocate Machaile asserted that Advocate Makase presented no flight risk, as he resides in Hlotse with his family and has no motive to evade his legal obligations.
He respectfully petitioned the court for his release on bail, emphasising that he had demonstrated his ability to adhere to the court’s conditions.
The Crown Counsel, Advocate Taelo Sello, expressed no objection to the bail application, acknowledging that the accused had a forthcoming matter in the Court of Appeal.
Consequently, the court granted Advocate Makase bail without any financial conditions, with the stipulation that he must not tamper with state witnesses and must fully participate in the trial process until its conclusion.
Trio in court for killing ‘witches’
THREE elderly women were all stabbed to death with a spear during a deadly night after they were accused of being witches.
Three suspects, all from Ha-Kholoko village in Roma, appeared in the High Court this week facing a charge of murder.
They are Jakobo Mofolo, Oele Poto, and Pakiso Lehoko.
They accused the elderly women of bewitching one of Poto’s relative who had died.
The stunning details of the murder was unravelled in court this week, thanks to Tlhaba Bochabela, 32, who is the crown witness.
Bochabela told High Court judge, Justice ’Mabatšoeneng Hlaele, last week that he had been invited to become part of the murder group but chickened out at the last minute.
Bochabela said in March 2020, he was invited by Rethabile Poto to come to his house in the evening.
He said when he went there, he found Mofolo, Poto, and Lehoko already at the house. There were two other men who he did not identify.
“I was told that the very same night we were going to do some task, we were going to kill some people,” Bochabela told Justice Hlaele.
He said he asked which people were going to be killed and was told that they were ’Malekhooa Maeka, ’Mathlokomelo Poto, ’Mampolokeng Masasa.
They said the three women had successfully bewitched Rethabile Poto’s uncle leading to his death.
Bochabela said after he was told of this plot, he agreed to implement it but requested that he be allowed to go to his house to fetch his weapon.
He said Lehoko was however suspicious that he was withdrawing from the plot and mockingly said “let this woman go and sleep, we can see that he is afraid and is running away”.
Bochabela said the only person he told the truth to, that he was indeed going to his home to sleep instead of going to murder the three elderly women was Mofolo who also told him that he was leaving too.
He said he told Mofolo that he felt uncomfortable with the murder plan.
Bochabela said he left and when he arrived at his place he told his wife all about the meeting and the plot to kill the women.
He said his wife commended him for his decision to pull out.
“I told my wife to lock the door and not respond to anyone that would come knocking looking for me,” Bochabela said.
He said later in the night, Rethabile Poto arrived at his place and called him out but they did not respond until he left.
Bochabela said in the morning they discovered that indeed the men had carried out their mission.
The village chief of Ha-Kholoko, Chief Thabang Lehoko, told Justice Hlaele that it was between 11 pm and 12 midnight when he received a phone call from one Pakiso Maseka who is a neighbour to one of the murdered women.
Chief Lehoko said Maseka told him to rush to ’Mampolokeng Masasa’s place to see what evil had been done to her.
“I rushed to Masasa’s place and on arrival I found Pakiso in the company of Moitheri Masasa,” Chief Lehoko said.
He said he found the old lady on the bed, naked with her legs spread wide.
“I was embarrassed by the sight of the old lady in that state, naked and covered in blood,” the chief said.
He said he went out and asked Maseka what had happened but Maseka referred him to Moitheri Masasa.
Chief Lehoko said Masasa told him that there were people with spears who had threatened to kill him if he came out of the house.
He said Maseka said he knew that Masasa’s neighbour, ’Malekhooa Maeka, was a light sleeper and she could have heard something.
The chief then sent one Patrick Lehoko to Maeka’s house to check if she had heard anything but Patrick came back saying Maeka was not at her house.
“I immediately stood up and went to ’Malekhooa’s place,” Chief Lehoko said.
He said when he arrived, he knocked at her door but there was no response so he kicked the door open, went in and called out ’Malekhooa Maeka by name.
Chief Lehoko said he then lit his phone and saw her lying in bed covered in blankets.
He said he then went closer to her and shook her but she was heavy.
Chief Lehoko said he tried to shake her again one last time while still calling her out but he touched blood.
He said he immediately left and went back to tell others that Maeka seemed to be dead too.
“I decided to go and buy airtime from the nearest shop which I had passed through near ’Matlhokomelo Poto’s home.”
He said on his way he met one Sebata Poto who asked him who he was.
Chief Lehoko said he only replied by telling him that the two women, Masasa and Maeka, had been murdered.
He said Sebata Poto told him that “’Matlhokomelo has been stabbed with a spear too”.
Chief Lehoko said he rushed to ’Matlhokomelo Poto’s house where he found her seated in the middle of the house supported by her children with blood oozing from her chest, gasping for air.
“I stepped out and went to get airtime, but I found her dead when I returned from the shop,” the chief said.
The case continues.
Opposition fights back
THE opposition is launching a nasty fightback after Prime Minister Sam Matekane defanged their no-confidence motion by roping in new partners to firm up his government.
Matekane’s surprise deal with the Basotho Action Party (BAP) has trimmed the opposition’s support in parliament and thrown their motion into doubt.
But the opposition has now filed another motion that seeks to get Matekane and his MPs disqualified from parliament on account that they were elected when they had business interests with the government.
The motion is based on section 59 of the constitution which disqualifies a person from being sworn-in as an MP if they have “any such interest in any such government contract as may be so prescribed”.
Section 59 (6) describes a government contract as “any contract made with the Government of Lesotho or with a department of that Government or with an officer of that Government contracting as such”.
Prime Minister Matekane’s Matekane Group of Companies (MGC) has a history of winning road construction tenders. Other Revolution for Prosperity (RFP) MPs, most of whom were in business, had had business dealings with the government.
It is however not clear if the MPs were still doing business with the government at the time of their swearing-in.
Matekane’s MGC Park is housing the Independent Electoral Commission (IEC), which is a government institution established by the constitution, getting its funds from the consolidated funds.
The motion was brought by the Popular Front for Democracy (PFD) leader Lekhetho Rakuoane who is a key figure in the opposition’s bid to topple Matekane.
The motion appears to be a long shot but should be taken in the context of a political game that has become nasty.
Advocate Rakuoane said the IEC’s tenancy at the MGC is one of their targets.
“The IEC is one of the government departments,” Rakuoane said.
“It is currently unethical that it has hired the prime minister’s building.”
“But after the motion, he will have to cut ties with the IEC or he will be kicked out of parliament.”
The Democratic Congress (DC) leader, Mathibeli Mokhothu, said although the IEC is an independent body, it can still be regarded as part of the government because it gets its funding from the consolidated fund.
The Basotho Covenant Movement (BCM)’s Reverend Tšepo Lipholo, who seconded the motion, said the Matekane-led government “is dominated by tenderpreneurs who have been doing business with the government since a long time ago”.
“Now they have joined politics, they must not do business with the government,” Lipholo said.
He said some of the MPs in the ruling parties are still doing business with the government despite their promises before the election to stop doing that.
“Those who will not abide by the law should be disqualified as MPs,” Lipholo said.
“Basotho’s small businesses are collapsing day-by-day, yet people who are in power continue to take tenders for themselves.”
He applauded the Abia constituency MP Thuso Makhalanyane, who was recently expelled from Matekane’s RFP for rebellion because he withdrew his car from government engagement after he was sworn in as an MP.
“He set a good example by withdrawing his vehicle where it was hired by the government,” Lipholo said.
Rakuoane said during the past 30 years after Lesotho’s return to democratic rule, section 59 of the constitution has not been attended to even when it was clear that some MPs had business dealings with the government.
“This section stops you from entering parliament when doing business with the government. Those who are already members will have to leave,” he said.
Rakuoane said they are waiting for Speaker Tlohang Sekhamane to sign the motion so that the parliament business committee can set a date for its debate.
“The law will also serve to assist ordinary Basotho businesses as they will not compete with the executive,” he said.
“There are many Basotho businesses in business these MPs are in. They must get those tenders instead.”
The new motion comes barely a week after a court application aimed at disqualifying Mokhothu.
The government-sponsored application sought the Constitutional Court to declare Mokhothu unfit to be prime minister because he was convicted of fraud in 2007.
Mokhothu has been suggested as Matekane’s replacement should the motion of no confidence pass in parliament.
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