The President of the Law Society of Lesotho, Lintle Tuke, has expressed concern over what he describes as questionable and potentially unlawful conduct by the Lesotho Mounted Police Service, the prosecution and the Magistrates’ Court following the arrest and detention of a young man, Tsebang Ramoholi, allegedly for insulting the Lesotho Defence Force commander by telephone.
In a Facebook post, Tuke said official police communications indicate that Ramoholi was arrested for a telephonic insult, criminally charged and brought before court on 22 December, where he was denied bail. He said the circumstances of the arrest and prosecution raise serious legal questions, particularly in light of long settled constitutional law.
Tuke reminded the country that criminal defamation and criminal insults were declared unconstitutional by the Constitutional Court of Lesotho nearly a decade ago, following the prosecution of former Lesotho Times editor Basildon Peta.
Constitutional Court ruling on criminal defamation
The matter arose from Peta v Minister of Law, Constitutional Affairs and Human Rights, a case stemming from the criminal prosecution of Peta after the publication of an article involving the then commander of the Lesotho Defence Force, Lieutenant General Tlali Kamoli.
In its judgment, delivered by a full bench of Justices Mokhesi, Mahase and Moiloa, the Constitutional Court struck down provisions of the Penal Code that criminalised defamation, holding that they violated the constitutional right to freedom of expression guaranteed under section 14 of the Constitution.
The court found that the offence was overly broad and vague, and that it created a chilling effect on free expression, particularly for journalists and members of the public engaging in debate on matters of public interest. It noted that criminal liability could arise even where no one other than the complainant had heard the alleged defamatory statement, a position the court said could not be justified in a democratic society.
The judges further criticised the extension of criminal defamation to statements concerning deceased persons and found the statutory defence of “public benefit” to be imprecise and susceptible to abuse.
On the role of the media, the court stated that the press is entitled to wide latitude when scrutinising public officials, including the use of robust language, satire and provocation. It emphasised that public figures must tolerate a higher degree of criticism than private individuals.
The court ultimately declared criminal defamation unconstitutional, confirming that disputes relating to reputation and insult must be pursued through civil litigation rather than criminal arrest or detention.
Questions over continued arrests
Tuke said the legal position has been settled for many years, yet arrests and prosecutions for alleged insults and defamation continue to be reported.
“This legal position has been settled for nearly a decade,” he said, questioning whether the persistence of such cases reflects a lack of understanding of the law by those tasked with enforcing it.
Legal practitioners have warned that continued reliance on unconstitutional offences undermines the rule of law and exposes the state to potential civil liability for unlawful arrest and detention.
At the time of publication, the police and the prosecution had not publicly responded to the concerns raised by the Law Society President.
Legal explainer: what the law says on insults and defamation
Are insults and defamation crimes in Lesotho?
No. Criminal defamation and criminal insults were declared unconstitutional by the Constitutional Court. They are no longer criminal offences.
What does this mean in practice?
The police cannot arrest or detain a person solely for allegedly insulting or defaming another person.
How should disputes about reputation be handled?
They must be pursued through civil courts. The aggrieved person may sue for damages or other civil remedies.
Who should not be involved?
Police, prosecutors and criminal courts should not be used to settle disputes about insults, defamation or reputational harm.
Why did the court strike down criminal defamation?
The court found that it violated freedom of expression, was vague and overly broad, and had a chilling effect on journalism and public debate.
