The government of Lesotho has told the African Union (AU) that reports about harassment of the Lesotho Times journalists are “just an appeal” to absolve them from criminal charges they are facing, dismissing the allegations as flawed “as the purpose is only meant to put weight on the journalists’ vendetta to tarnish the government’s image.”
This is contained in a letter the government wrote to the AU’s African Commission on Human and People’s Rights (ACHPR), dated 19 October 2016.
Through the Ministry of Foreign Affairs and International Relations, the government was responding to the ACHPR’s letter to Prime Minister Pakalitha Mosisili dated 15 July 2016, shortly after the arrests, interrogation and charging of the Lesotho Times journalists, and the near fatal shooting of the newspaper editor, Mr Lloyd Mutungamiri, in July last year.
The letter was a joined urgent appeal to Dr Mosisili authored by the ACHPR Commissioner Pantsy Tlakula, among others, and asked the government to explain the steps it “has taken or intends to take” to fulfill its obligations to promote and protect human rights under article 1 of the African Charter.
The letter also asked the government to clarify its position on the shooting of Mr Mutungamiri, the arrest and interrogation of the Lesotho Times reporter, Ms Keiso Mohloboli, as well as the charging of its publisher, Mr Basildon Peta, with criminal defamation, among other things.
Countless attempts to get a comment from former Foreign Affairs Minister Tlohang Sekhamane, the author of the damning letter, were fruitless.
The letter in question chronicled events that had transpired since Ms Mohloboli and Mr Mutungamiri were initially taken in by the police for questioning over a story about an exit package for the Lesotho Defence Force (LDF) commander Lieutenant-General Tlali Kamoli, through the charging of Mr Peta with criminal defamation over this newspaper’s satirical column, Scrutator, as well as the subsequent shooting of Mr Mutungamiri.
The ACHPR cautioned that while it was not reaching any conclusions on the information at its disposal, it was concerned that “if true, the government of Lesotho would be in grave violation of several rights enshrined in the African Charter on Human and People’s Rights (the African Charter) as a state party, including article 1 on the obligation to adopt legislative or other measures to give effect to the provisions of the African Charter; Article 9 on the right to freedom of expression; and Article 25 on the duty to promote human rights”.
The ACHPR is a quasi-judicial body tasked with promoting and protecting human rights throughout Africa, interpreting the African Charter on Human and Peoples’ Rights as well as considering individual complaints of violations of the charter.
Apart from Ms Tlakula, who is also the former executive director of South Africa’s Independent Electoral Commission, the 15 July 2016 letter to Dr Mosisili, was also signed by Reine Alapini Gansou of Benin, in her capacity as Special Rapporteur on Human Rights in Africa.
Mr Mutungamiri (50), was shot by two assailants at his home in Upper Thamae on 10 July 2016 in an obvious assassination attempt. He has since undergone specialist surgery in South Africa to repair his shattered lower jaw and to remove a bullet that lodged in his left ear and other bullet fragments from his face.
Following the shooting, Ms Mohloboli (32) quit her job and fled the country fearing for her life.
Mr Peta is now in court charged with defamation over his newspaper’s satirical comment.
In the letter, which was also copied to the Foreign Affairs and Justice ministries, the ACHPR asked the government to clarify its investigations on the shooting of Mr Mutungamiri to bring the culprits to book.
The letter explained in great detail the need to protect freedom of expression and the press and why it is wrong for authorities to ask journalists to reveal their sources as had been requested of the Lesotho Times journalists.
The letter also appeared to pour scorn on criminalizing the journalism profession through the raising of criminal defamation charges against journalists, saying public figures should tolerate a greater degree of criticism.
The ACHPR commissioners said they had noted with concern reports indicating Ms Mohloboli and Mr Mutungamiri “were both interrogated by military and police officials” in order to get them to disclose their sources for a story that appeared in the Lesotho Times of 23 June 2016 titled, “Exit strategy for Kamoli”.
In the story, the Lesotho Times had reported about negotiations for an exit strategy for Lt-Gen Kamoli in line with a recommendation by a Southern Africa Development Community resolution that he be removed from the helm of the army. Lt-Gen Kamoli has since been retired from service in December last year.
But in equally comprehensive response, the government of Lesotho said it is of a view that “the current reports furnished to the African Commission on Human and People’s Rights against Lesotho is just an appeal by the journalists to be absolved from the criminal charges they are facing.”
The letter reads: “The government of the Kingdom of Lesotho acknowledges receipt of the joint urgent appeal letter from the African Commission on Human and People’s Rights, namely, the Commissioner Rapporteur on the Humana Rights Situation in Lesotho, the Special Rapporteur on Freedom of Expression and Access to Information in Africa and the Special Rapporteur on Humana Rights Defenders in Africa, dated 15 July 2016.
“Government concedes that, freedom of opinion and of expression constitutes the cornerstone of any democratic society and a solid and fundamental basis for development. Indeed, the right that guarantees freedom of expression is widely seen as underpinning all other human rights and democratic freedoms. We also take note that the right to freedom of expression and opinion also has a corollary, namely freedom of the press, which is normally perceived as the individual’s right to freedom of expression extended to the media. However, like most rights and freedoms, it is not absolute, nor should it be. The government therefore wishes to clarify and refute the allegations made against it and hereby responds as follows:
“On the issue of the journalists being brought to the police station for interrogation, we wish to clarify that it is a standard procedure that is exercised by the police on every citizen when undertaking investigations. Section 19 of the 1993 Constitution provides for equality and equal protection of the law. Journalists are treated on the same footing with other citizens when it comes to issues relating to investigations, they are not above the law. This was also done in accordance with the Police Act of 1995.”
The government says it confirms that Ms Mohloboli and Mr Mutungamiri were called to Mabote Police Station on 23 and 24 June 2016, “with a purpose of seeking clarification on the article of the satire column named ‘Scrutator’ and the rationale behind the article titled, ‘Exit Strategy for Kamoli.’
The government however argues that the purpose was not to coerce the journalists to reveal their sources “as they indicate. Similarly, on the issue of confiscating Mr Lloyd’s passport, since he had not yet appeared before the courts for any bail hearing, his passport could not be confiscated without any legal basis. We wish to report that, consequent to the article referred to in the communication, ‘Exit Strategy for Kamoli’, dated 23 to 29 June 2016 of volume 9 issue 12, the LDF took a legal action against Mr Lloyd Mutungamiri, Ms Mohloboli and Mr Peta for defamation against the LDF commander, Lieutenant General Tlali Kamoli, for the slanderous and disparaging words used in the article, which have the effect of impairing the reputation of the commander.
“On page two, one Keiso Mohloboli, citing what she terms authoritative sources wrote under the same heading that the government was negotiating with the LDF commander in relation to offering him diplomatic posting to Russia which he turned down instead made a counterproposal that he be paid M55 million and that M40 million was being proposed.”
The Lesotho Times issue, the government also pointed out, further charged that another condition for Lt-Gen Kamoli’s exit was that he wanted to be involved in the appointment of his successor.
“The commander has no knowledge of such statements and activities made against him by the writer including the publisher and the editor. Actually, all such statements are utterly false and the paper did not even bother to verify them before publishing them. Further, one of the Lesotho Times writers under the pseudo-name of Scrutator on the same issue in page 20 under the heading ‘Flicker of hope for my beloved Kingdom’ wrote about what she says have been stories doing the rounds in Maseru.
“The story is to effect that Lt-Gen Kamoli, during one of his moody days, pitched up at a cabinet meeting unannounced and forced the prime minister to halt proceedings and that the prime minister “dutifully” complied. According to the paper, the commander did that to show that he was indeed the king of this country with whom real power resides. The price of this biased journalism does not only insult and defame the commander as a person but cuts across the entire cabinet of the government.
“The articles insult, defame and peddles very disparaging remarks about the commander of the Defence Force, the prime minister, deputy prime minister and the entire cabinet of the government of Lesotho, and this amounts to criminal defamation as prescribed by Section 104 read with Sections 101 – 103 of the Penal Code Act No.6 of 2010.
“Further, the publication of the above-mentioned articles by Lesotho Times are also subversive in nature, contrary to Section 7 of the Internal Security (General) Act No.24 of 1984 since the words published therein do not only insult the ministers of the government but are intended or calculated to bring into hatred or contempt or excite disaffection against the commander of LDF as a public officer.”
The government said publication of this nature amounted to “seditious publication contrary to the provisions of Section 76(2)(c) read with Section 76(5) of the Penal Code Act No.6 of 2010.”
The Lesotho Times, the government added, was also undermining “the authority of and being disrespectful to His Majesty the King of Lesotho by referring to the LDF commander as “real King of Lesotho.” This also invites the invocation of the provisions of Section 79(2) of the Penal Code Act No.6 of 2010.”
It said it was against this background that the LDF commander took a legal action against the Lesotho Times newspaper.
“This was done within the confines of Lesotho’s domestic laws and supported by international human rights law. The right to freedom of expression is safeguarded by the 1993 Constitution of Lesotho. Section 14(1) provides that ‘every person shall be entitled to, and shall not be hindered in his enjoyment of, freedom of expression, including freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information without interference.’
The LDF, the government said, also relied on the Printing and Publishing Act of 1967.
“The purpose of this Act is to protect an individual’s reputation or feelings from unwarranted attacks from print media. It also aims to protect people against false statements of facts which cause damage to their reputation. The law lays the ground work for striking a proper balance between the protection of individual’s reputation and freedom of expression. The government as a duty bearer has over the years ensured that journalists exercise their right to receive information and report to the public, information or news without undue influence or interference. Worthy of note is the fact that there are over ten independent newspapers which operate in a country with a population of 1.8 million people.
“We wish to report therefore that the grounds upon which Mr Mutungamiri reported in an article titled ‘Exit strategy for Kamoli’, falls within the ambit of section 14(2)(b) which provides that freedom of expression may be limited for the purpose of protecting the reputation, rights and freedoms of other persons.”
The government argued the article has seriously impaired the reputation of the commander of the LDF, “and it has not only a false image of a renowned public figure but the image of the state as well, by instigating propaganda that the government was desirous of parting with M40 million of public funds to entice the legally appointed commander to vacate in his office. Whilst journalists have the duty to give information to the public, they should not give misleading information.”
It said restrictions or limitations upon which a legal action was exercised against Mr Mutungamiri, Ms Mohloboli and Mr Peta, conform to the international law principles of necessity and proportionality as provided for in the General Comment No.34 under article 19.
On the shooting of Mr Mutungamiri, the government said Lesotho is governed by the rule of law “and continues to uphold the principles of democracy and good governance. The shooting of Mr Mutungamiri is currently being investigated by the police and as soon as the investigations are complete, the perpetrators shall be brought to book.
“The government condemned these acts and as such, the Minister of Communications Science and Technology, as the spokesperson of government, spoke on national radio and television assuring the nation that the government will leave no stone unturned until the perpetrators are brought before the courts of law. While governments bear the primary duty of promoting and protecting all human rights, journalists also have the responsibility of reporting the state of affairs in member states in a partial manner.
“Further, while the press has the duty to impart information and ideas on matters of public interest, it must not overstep certain limits which are provided by the domestic laws and international human rights law. We are therefore of the view that the current reports furnished to the African Commission on Human and People’s Rights against Lesotho is just an appeal by the journalists to be absolved from the criminal charges they are facing.
“We dismiss these allegations as flawed as the purpose is only meant to put weight on the journalist vendetta to tarnish the government’s image. Good journalism is guaranteed through a whole set of self-regulation practices, including ethical and professional standards, codes of ethics and media accountability mechanisms operated by the media themselves.”
The government said it was mindful of the role that human rights defenders play in a democratic society and remained committed to its obligations of protection, respect and fulfilling their rights.
“However, human rights defenders must take into consideration the universality of human rights and act within the ambit of the law. We would therefore like to reiterate Lesotho’s commitment to working in cooperation with the African Commission on Human and People’s Rights and its mechanism towards attaining a world that is free of human rights violations, where the rule of law and democracy as spelled out by the various regional and international human rights instruments, prevail.”