‘The law has tied our hands’

Lesotho Times - - Big Interview -

THE Po­lice Com­plaints Author­ity (PCA) is an in­de­pen­dent body that con­sid­ers com­plaints against Le­sotho Mounted Po­lice Ser­vice (LMPS) of­fi­cers and over­sees their con­duct.

How­ever, the PCA has been crit­i­cised by many for be­ing a tooth­less bull­dog that has let in­frac­tions by some mem­bers of the LMPS slide.

In this wide-rang­ing in­ter­view, PCA Chair­per­son Mahlape Mo­rai ex­plains to Le­sotho Times ( LT) re­porter Pas­cali­nah Kabi about the role and im­por­tance of the PCA in Le­sotho’s democ­racy.

LT: How did the PCA come about?

Mo­rai: The Po­lice Com­plaints Author­ity was es­tab­lished by the Po­lice Ser­vice Act of 1998. In 2003, sec­tion 22 of the Po­lice Ser­vice Act was op­er­a­tionalised, le­gal­is­ing the es­tab­lish­ment of the PCA in 2005.

LT: What is the man­date of the PCA?

Mo­rai: Our man­date is to in­ves­ti­gate com­plaints against mem­bers of the LMPS. How­ever, we can only in­ves­ti­gate these com­plaints af­ter a re­fer­ral by the Com­mis­sioner of Po­lice and the Min­is­ter of Po­lice and Pub­lic Safety.

We don’t in­ves­ti­gate cases of mur­der, sex­ual of­fences, as­sault, tor­ture or vi­o­la­tion of hu­man rights. That is the role of the LMPS. Our pri­mary role is to as­sess the con­duct of mem­bers of the LMPS in ex­e­cut­ing their du­ties.

LT: What is your re­la­tion­ship with the LMPS? Are you au­ton­o­mous and can peo­ple trust you to in­de­pen­dently in­ves­ti­gate po­lice of­fi­cers?

Mo­rai: We are very much re­lated to the po­lice, be­cause all of us — LMPS, PCA, Po­lice Direc­torate and Po­lice In­spec­torate – in the Min­istry of Po­lice and Pub­lic Safety an­swer to the same min­is­ter (Monyane Moleleki) and were es­tab­lished un­der the Po­lice Ser­vice Act.

I don’t know how your read­ers may re­ceive this, but I can only tell you what the law ex­pects us to do. The Po­lice Ser­vice Act man­dates us to carry out in­ves­ti­ga­tions only where there are re­fer­rals.

A re­fer­ral is an author­ity that gives PCA pow­ers to in­ves­ti­gate. A re­fer­ral is only made by the Com­mis­sioner of Po­lice and Min­is­ter of Po­lice and Pub­lic Safety. I don’t know if we can be re­garded as au­ton­o­mous, but per­haps it can be ar­gued that we shouldn’t get re­fer­rals from the Com­mis­sioner of Po­lice for us to be au­ton­o­mous. Mem­bers of the pub­lic com­plain about that is­sue. But de­spite those com­plaints, we still re­ceive re­ports.

We en­cour­age mem­bers of the pub­lic to come to our of­fices and re­port their com­plaints. We take and record a state­ment from a com­plainant and sub­mit it to the re­spon­si­ble min­is­ter for a re­fer­ral to start in­ves­ti­ga­tions. This is done with the un­der­stand­ing that it may be dif­fi­cult for or­di­nary peo­ple to ap­proach the Com­mis­sioner of Po­lice or the min­is­ter to re­port their com­plaints. So we meet them half-way by sub­mit­ting the state­ments and ask­ing for the min­is­ter’s re­fer­ral.

For in­stance, last week we had a case of a man al­legedly shot by the po­lice. We im­me­di­ately took his state­ment and asked the min­is­ter for a re­fer­ral to in­ves­ti­gate the mat­ter.

Some peo­ple know the law man­dates the min­is­ter to make re­fer­rals for the PCA to in­ves­ti­gate po­lice of­fi­cers. So, they just re­port their case to the min­is­ter, who, in turn, gives us a re­fer­ral.

LT: Does the law give you re­course in the event a re­fer­ral does not ma­te­ri­alise?

Mo­rai: Un­for­tu­nately for now, our bite starts at the re­fer­ral stage. How­ever, I must state that I en­gage the min­is­ter on ev­ery sin­gle case on a reg­u­lar ba­sis. I ex­plain ev­ery sin­gle de­tail of a case in ask­ing for his re­fer­ral.

LT: What are some of the as­pects in which you are al­lowed to in­ves­ti­gate po­lice con­duct?

Mo­rai: Al­low me to re­spond to this ques­tion with an ex­am­ple. Im­me­di­ately af­ter a com­plainant has re­ported a case to the po- lice, I ex­pect po­lice of­fi­cers to fully in­ves­ti­gaten­ves­ti­gate the mat­ter be­fore they can ar­rest a sus­pect.

A woman came to re­port that herer son was ar­rested by the po­lice with­out anyny in­ves­ti­ga­tions be­ing un­der­taken. That is unacceptable. A sus­pect should only be ar­rest­ed­sted due to the out­come of in­ves­ti­ga­tions.

An­other ex­am­ple of poor con­duct is when a per­son makes a com­plaint, but no­body­ody lifts a fin­ger to deal with the case. There would also be no ex­pla­na­tion why such a cas­ese has not been dealt with. In such a case, a com­plainant can come to the PCA of­fices to re­port the mat­ter and we would ask the min­is­ter­is­ter for a re­fer­ral to in­ves­ti­gate.

Yet an­other ex­am­ple is when the po­lice ar­rest a sus­pect and keep them in cus­todyus­tody for more than 48 hours. That would be a re­sult of poor in­ves­ti­ga­tion on the part of the po­lice, and worth com­plain­ing about.

We also in­ves­ti­gate cases where a sus­pect dies in cus­tody to as­sess whether the po­lice fol­lowed their own in­ves­tiga­tive guide­lines. They know the in­ves­ti­ga­tion pro­cess­cess more than us be­cause they are in­ves­ti­ga­tor­si­ga­tors in their own right.

LT: Af­ter com­plet­ing your in­ves­ti­ga­tions, what pro­cesses do you fol­low to en­sure po­lice of­fi­cers found to have bro­ken the law are pros­e­cuted?

Mo­rai: Our cases are not pros­e­cuted.uted. The law clearly stip­u­lates that we make ke rec­om­men­da­tions soon af­ter com­plet­ingg our in­ves­ti­ga­tions. Our rec­om­men­da­tions ons are handed over to the Min­is­ter of Po­licelice and Pub­lic Safety in the form of a re­port.ort. The min­is­ter will, in turn, make a di­rec­tivec­tive to the Com­mis­sioner of Po­lice to ef­fect t those rec­om­men­da­tions. Our work is to in­ves­ti­gate, make rec­om­men­da­tions and end there.

LT: Are there any le­gal routes s the PCA can take to en­sure its rec­om­men­da­tions are im­ple­mented in a sit­u­a­tion where the re­spon­si­bleible min­is­ter does not agree?

Mo­rai: We have not en­coun­tered da a sit­u­a­tion where the min­is­ter has re­fused to im­ple­ment our rec­om­men­da­tions. But in a sit­u­a­tion where he has some doubts, I pre­sume he willll call me to dis­cuss a rec­om­menda- tion he does not agree with.

How­ever, we must un­der­stand that rec­om­men­da­tions are just that. We are not forc­ing him to im­ple­ment the pun­ish­ments rec­om­mended in in­ves­ti­gated cases. Ba­si­cally, pun­ish­ments rec­om­mended are in the form of dis­ci­plinary mea­sures, de­mo­tion, a hear­ing, writ­ten or ver­bal warn­ing, se­vere rep­ri­mand, sur­charge, de­mo­tion and dis­missal depend­ing on a par­tic­u­lar case.

LT: Where is the money de­ducted from a po­lice of­fi­cer’s salary taken to in the case of a sur­charge di­rec­tive?

Mo­rai: You will re­mem­ber that when a per­son has in­curred med­i­cal costs due to po­lice ill-treat­ment, the vic­tim will be paid through a civil claim purse. How­ever, I don’t know where ex­actly the money is taken to, but I know the min­istry has a civil claim an­nual bud­get.

LT: How many re­fer­rals do you get per an­num?

Mo­rai: Due to the aware­ness cam­paigns we have car­ried out, in the three-and-half years I have been here, the num­ber of re­ported cases has dras­ti­cally in­creased. For the first quar­ter of 2016, we planned to in­ves­ti­gate 18 cases only, but re­ceived 32 cases owing to the aware­ness cam­paigns we made.

In our cam­paigns, we sen­si­tise the po­lice themselves, telling them we are the eyes of the min­is­ter to en­sure they are pro­fes­sional in their con­duct.

We also make the po­lice aware they shouldn’t do as they please, be­cause they have to be ac­count­able to the peo­ple. Their line of work is vast, and we in­ves­ti­gate if they con­ducted themselves pro­fes­sion­ally and fol­lowed all pro­ce­dures.

LT: What is the PCA’S role in en­sur­ing mem­bers of the LMPS don’t vi­o­late hu­man rights in their line of duty?

Mo­rai: We don’t dis­crim­i­nate cases. If a per­son feels ag­grieved that mem­bers of the LMPS were not “A po­lice, helper and friend” as the motto states, and were not ac­count­able, we im­me­di­ately in­ves­ti­gate if there is a re­fer­ral.

If there is no re­fer­ral, we can only ad­vise a com­plainant to come to our of­fices so we take a state­ment and ask the min­is­ter for a re­fer­ral.

LT: In a scale of 1-10, how would you rate your ef­fec­tive­ness?

Mo­rai: I can con­fi­dently say we are do­ing what the law says we must do be­cause we hold pub­lic gath­er­ings, par­tic­i­pate in ra­dio pro­grammes and in­ves­ti­gate cases where there are re­fer­rals.

How­ever, the law has tied our hands so tight we are not free to carry-out in­ves­ti­ga­tions even when there is an ur­gent need. A clas­sic ex­am­ple is a case in Pit­seng, Leribe which hap­pened last week whereby the po­lice al­legedly ar­rested and killed a civil­ian. We were un­able to do any­thing at the mo­ment as the law re­stricts us.

There is also a Vuka Mosotho, Leribe case where peo­ple fled their homes and slept in the moun­tains be­cause of a po­lice op­er­a­tion.

In my view, the op­er­a­tion was not done well be­cause the po­lice of­fi­cers force­fully en­tered ev­ery sin­gle house­hold beat­ing par­ents and chil­dren even though they were not look­ing for any par­tic­u­lar per­son.

Un­der nor­mal cir­cum­stances, dur­ing an op­er­a­tion like that, the po­lice should ap­proach the vil­lage chief and give them a list of wanted peo­ple and the rea­sons thereof. The chief then helps the po­lice lo­cate the wanted peo­ple for ques­tion­ing or ar­rest. How­ever, beat­ing and in­tim­i­dat­ing peo­ple is bad con­duct.

In that par­tic­u­lar case, we took a stand as the PCA. We went to Vuka Mosotho to hold an aware­ness cam­paign and took res­i­dents’ state­ments. The res­i­dents brought book­lets from their clinic stat­ing they were in­deed as­saulted. I re­mem­ber one man whose jaw was shat­tered.

We then sought the re­spon­si­ble min­is­ter’s re­fer­ral, but we didn’t get it im­me­di­ately.

If you look at our coun­ter­parts in coun­tries like Zam­bia and South Africa, they are well ahead of us. For in­stance, our coun­ter­parts in Zam­bia started off like us need­ing a re­fer­ral by the re­spon­si­ble min­is­ter. How­ever, they re­cently in­formed me they are now in­de­pen­dent; that means they don’t have to wait for cases to be re­ferred to in­ves­ti­gate.

South Africa be­came in­de­pen­dent much later than us, yet Le­sotho’s PCA is way be­hind theirs. They have their own in­ves­ti­ga­tors, mag­is­trates, po­lice of­fi­cers and even have pow­ers to ar­rest po­lice of­fi­cers.

As much as we try to take com­plainants’ state­ments, we don’t get to know about all the cases un­less they are re­ferred.

LT: What should the pub­lic do in en­sur­ing your of­fice reaches the lev­els of the Zam­bian and South Africans po­lice com­plaints au­thor­i­ties?

Mo­rai: We run aware­ness cam­paigns to tell peo­ple about their rights and our work as PCA. We also take their own opin­ions about the chal­lenges fac­ing this of­fice.

They want this of­fice to be to­tally au­ton­o­mous. They want it to be in­de­pen­dent. They want it to play an over­sight role and not to re­port to the min­is­ter or Com­mis­sioner of Po­lice. This of­fice can ac­tu­ally play a huge role in pro­tect­ing hu­man rights if the le­gal frame­work is ad­dressed.

PCA Chair­per­son Mahlape Mo­rai

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