By Thoboloko Ntšonyane

MASERU – Chief Justice (CJ) Sakoane Sakoane has emphasized that to succeed in the fight against crime, active participation from everyone is required, extending beyond law enforcement and criminal justice institutions.

CJ Sakoane recently made a passionate plea for every citizen to assume their legal responsibilities as empowered by the law in order to fight the scourge of the escalating crime rate in the country.

He gave a keynote address at the recent justice sector forum that had attracted the participation of its actors including the Judiciary, police, the office Director of Public Prosecutions (DPP), Directorate on Corruption and Economic Offences (DCEO), Lesotho Correctional Services (LCS), Law Society, legal scholars, civil society organizations (CSOs), presiding officers, Minister of Justice and Law, Justice Nthomeng Majara also former Chief Justice as well as the development partners.

“We meet in times of trouble for our nation, none then disagree that these are the times when crime is spiraling out of control. We hear of senseless and horrible murders almost every day, robberies and burglaries are our daily bread, firearms disappear in armories and exhibit rooms under the watch of the police raising the specter of infiltration and capture by criminal elements.

“We hear of rapes of children, grandmothers, and persons with disability now and then, stock theft has become a national sport. Occupants of public offices have turned them into dens of bribery and corruption as long as there is embezzlement of public funds. There is a sense that while the security institutions are winning some of the battles against crime such as these, they are struggling to get to grips with them,” he said urging the participants to reflect and “self-correct” so that the “pendulum is stopped swinging in favor” of criminals.

He said the actors in the justice system have heard the society’s wails, on the increasing rights on the part of criminality and must heed the clarion call to rise to the occasion and fight crime effectively, and deliver justice speedily.

“This is an opportune moment to look each other right in the eye, and ask firmly but politely who dropped the ball, where and when and why. As we introspect, each institution must not apportion blame without first acknowledging how its own failures and weaknesses impact on the ability of the next one to function with optimal efficiency.

“It is important to appreciate that justice sector institutions are a caravan that travels across the national landscape to deliver justice and protect the rights, freedoms and security of citizens enshrined in the Constitution in chapter 2 thereof.

“A vivid description of each institution’s responsibility in this kingdom is given by the Court of Appeal, in the Bolofo case, and this is what the court has said, “the police officer that exercises the power of arrest, and first detention, the judicial officer who is seized with the responsibility to decree the continued detention of the accused, or his release on bail and the terms and conditions, upon which this is to occur, and regulates the conduct of the trial, the Director of Public Prosecutions who determines whether and when the prosecution should be instituted and upon which charges and who exercises a discretion as to whether to oppose bail or not.

“The High Court and the Court of Appeal, as the final arbiters on the fate of the accused persons and ultimately the prison authorities who are obliged to see to the protection of public by ensuring the secure incarceration of those committed to prison and to see to their rehabilitation even the social services that facilitated reintegration of the prisoners into society is part of this unit,” said.

The CJ highlighted each institution is not an island but the constituent part of the chain of justice delivery.

The head of the Judiciary added: “It is for this reason that, when society and victims of crime complain that the justice system is failing them, it is then irrelevant which of these institutions is more helpful than the other. All that people care and worry about, are the capabilities and resolve of the security and the justice sector institutions to prevent and combat crime and criminality with vigor so that our kingdom does not become a paradise for criminals.

The war against crime, he said, is too important to be left solely to the security and criminal justice system institutions; society has to join this fight. There are at least several reasons he canvassed why the society needs to join the fight against crime. He said:

  • They elect lawmakers in parliament and policy makers in the executive who are ultimately accountable to them.
  • They report offenses, give information to law enforcement agencies and act as witnesses in courts to provide relevant evidence. They may be called to serve as assessors in criminal trials.
  • They become victims of crime who are directly impacted by crime. Their victim impact evidence is highly useful in determining factors that aggravate crime and call for harsher sentences.
  • They participate in crime initiatives, and village watch schemes such as ‘mahokela’.
  • They are predisposed to becoming involved in crime as suspected offenders themselves. In this way they play a proactive not a passive role, in influencing and manipulating processes of law-making and compliance with the law.

Sakoane also stated that the private sector has the role to play saying the former is involved in security and control measures citing the use of private security companies and the administration of electronic surveillance systems.

In light of these, the Head of the Judiciary underscored that the law empowers people to combat crime, mentioning Criminal and Evidence Procedure Act, No.7 of 1981 which empowers chiefs and citizens.

According to the provisions of this piece of legislation, the CJ said the chiefs are empowered to arrest persons in circumstances where a person is found in possession of any implements of housebreaking, and are unable to account for them satisfactory; persons found in possession of anything reasonably suspected to be stolen or dishonestly obtained; persons loitering any place by night under circumstances which are afford reasonable crimes to believe that they are about to commit or have committed; persons reasonably suspected of committing or having committed an offense of being in unlawful possession of stolen animals and produce.

He further made mention to the effect that the private citizens are empowered to arrest persons who in their presence commit criminal offences such as treason, murder, sedition, rape, robbery, assault, housebreaking, theft, stock theft, and theft of motor vehicles.

“A private citizen can and should arrest any person who offers to sell porn or deliver any property which is reasonably suspected to be stolen property. A private citizen who rescues or aids an arrested person to escape or who attempts to escape or harbors or conceals such a person is liable to prosecution and punishment for two years in prison. Chiefs and private citizens are empowered to use reasonable force or even to kill a person who flees from arrest and cannot be prevented from escaping by any other means short of killing, such killing is deemed in law to be justifiable homicide.

He said apart from being empowered to arrest criminals, citizens bear duties such as to render assistance when called by the police to arrest suspects and detain them in custody, to attend court proceedings and give evidence when so directed by subpoena issued by courts.

The CJ said the witness who disobeys subpoena or its service is liable to be arrested and detained in custody. Also, the witness who is about to abscond or has absconded can and should be arrested adding that “he or she is not allowed to deny society the truth of what he or she knows”. 

Sakoane also mentioned that the witness is liable to imprisonment if they refuse to testify in court, and also if they give purged evidence because “justice is the search for truth and not lies”.

To the crown, he said it has a corresponding duty to maintain the welfare of witnesses by giving them allowances to travel to court, to eat and to be accommodated and protected.

He said the criminal justice system operates on the following checks and balances: outside the court process the police duty is to investigate and report crimes and arrest persons who are reasonable suspected to be involved in their commission adding that there is “no time limit” to conducting investigations, time limits only kicks in upon a suspect being deprived liberty when arrested and charged.

CJ reiterated that the police had to bring to court a suspect within a 48 hours period and this happens via the prosecutor who takes over and must “carefully and objectively” assess evidence and decide whether this is a prosecutable case or not.

“If such a determination is not possible because of the paucity of evidence, an application is made to remand the accused in custody pending further investigations for a stipulated period. The arrested person remains in custody for a maximum period of 60 days if not released on bail.

“If the accused applies for bail, the court’s duty is to determine the application by reference to materials placed before it and where relevant statutory requirements and bail restrictions in serious offenses which are stipulated in the Criminal Procedure and Evidence Amendment Act No. 10 of 2002, in respect of serious offenses, the accused person must satisfy the court that exceptional circumstances exist for granting bail.

“In sexual offenses, the prosecutor is duty-bound to contact a victim and obtain information relevant to the question on whether the bail application should be opposed and if granted the suitable conditions that it should be opposed, CJ emphasized.”

He noted that both prosecutions and the accused are entitled to review an appeal decision to grant bail or to refuse bail.

Taking stock on bail, Sakoane said “criminal justice systems of all democratic societies are underpinned by the golden thread of presumption of innocence until proven guilty in the court of law”.

He said this “golden thread’ is provided for under section 2 (A) of the Constitution. It reads “every person charged with the criminal offense shall be presumed to be innocent until he is proved or he pleads guilty”, adding that arrest and charge of a person does not imply that he has committed an offense.

Bail he said is a conditional release, on the solemn undertaking by the suspect that they will incorporate with police investigations and not jeopardize the trial.

The object of bail, the Judiciary’s head said, is neither punitive nor preventative, underscoring that by “granting bail the courts do not undermine the efforts of the police and encourage the commission of crimes”.

He said each bail application is considered and decided on the facts of the peculiar case adding that there is no one size fits all formula reaching decisions, it is for this reason bail applications of persons facing similar charges or who are jointly charged may yield different outcomes and bails conditions.

“When accused persons apply for bail as it is their right to do so, the courts always want to know the attitude of the DPP and public prosecutors as officers of the court duty-bound to provide information on any objections forthcoming from investigating officers and by extension victims of crime and the community. The court’s responsibility is to balance the scale by weighing the conflicting interests of the victim of the community with the accused right pending finalization of the trial.

“However, the attitude of the DPP and public prosecutors are not controlling…; it does not follow that because the DPP does not object, bails should be granted as a matter of force, courts retain discretion in the matter. The decisive consideration is that an accused person should not be kept in pre-trial detention awaiting perpetual investigations as a form of anticipatory punishment. Ordinarily therefore bail will be granted if to grant it does not prejudice the hands of justice,” he stressed.