In the introduction to his decision, Chief Justice Sakoane Sakoane explained that the applicant in this case, Tlali Kamoli, in prison and waiting for the conclusion of his trial, had heard the news of his son’s death and had applied to attend the funeral.
The commissioner of correctional services, to whom Kamoli applied, said that he had no power to help make such a decision and that he should go to court about the issue. As the CJ pointed out, however, once the matter was before court, the commissioner said that the court could not intervene and predicted ‘all manner of problems’ should the court do so.
Immediately after hearing argument on the day, the CJ granted an order stipulating that, among others, Kamoli be allowed to attend the funeral from 7.30am to 10.30am, that correctional officers should escort Kamoli to the funeral and that he return to the prison ‘soon thereafter without fail’.
The CJ said he would give his written reasons later, and it is this full judgment that has just become available.
Explaining his reasoning, the CJ noted that Kamoli has been in custody for the last five years and that his trial is continuing.
According to Kamoli he would not be a flight risk if he were to be allowed to attend the funeral. It would in any case be conducted in terms of Covid-19 regulations and would thus last for just two hours with a limited number of mourners.
Kamoli argued that he had the right to attend his son’s burial and that right was not curtailed by his being an accused, unless there was another factor that weighed heavily against his being allowed to attend.
The commissioner, however, told the court that because Kamoli faced charges of treason and murder and had been refused bail, this ‘outweighed’ any leave to attend the funeral. To let him attend would undermine national security and public safety, the commissioner said, and it would not be in the interests of justice for the court to allow it.
The commissioner listed a number of other factors that, in his view, meant Kamoli should not be allowed to attend the funeral including two claims that caught the attention of the CJ. One was that he, the commissioner, had no power to allow Kamoli out. The other was that if Kamoli were to be allowed to attend he would necessarily have to be escorted with his hands and ankles cuffed. This in turn would anger his family and would ‘certainly trigger disorder and crimes.’
The CJ said that in his view the dispute should be resolved after considering ‘rights and freedoms’ rather than ‘principles of statutory construction’. Did the commissioner have a discretionary power to grant leave in such a case, given constitutional values, the common law, custom, the law and the prison rules? And should Kamoli have to mourn ‘alone in the confines of a correctional facility without sight of the coffin, body and grave of his son?’
He quoted the presumption of innocence and the right to freedom from inhuman and degrading treatment and said correctional authorities were obliged to consider ‘reasonable requests’ by prisoners and to ‘accommodate them’ with due regard to discipline and security concerns.
It was also an internationally accepted human rights principle that imprisonment did not take away the basic rights of prisoners, but merely restricted them. In particular a prisoner’s freedom of movement was circumscribed and restricted – but not obliterated.
This was a view shared by decisions in other countries. He quoted several and noted a particular concern to bar the practice of using chains and leg irons. A Namibian case, for example, noted that chaining prisoners was a strong reminder of slave days and was unconstitutional.
The CJ also quoted international law on the treatment of prisoners and said that he ‘searched in vain’ for an expression of these minimum standards in Lesotho’s prison rules. The rules were also ‘deafeningly silent’ on the use of handcuffs, leg irons and chains, despite the UN’s minimum standards.
On the subject of whether the commissioner had the power to grant leave to Kamoli he said that in the same way as the commissioner interpreted the rules to allow him to permit a prisoner to attend a doctor’s consulting rooms, so the rules should be seen as allowing ‘an awaiting trial prisoner in bereavement to pay last respect to a close relative who under customary law such a prisoner has the right and bears the duty to bury.’
As for the idea that a large contingent of soldiers was needed for Kamoli’s safety and the safety of the public, ‘I am not persuaded that there was any compelling reason to have a big number of soldiers escorting the applicant. The funeral was not going to be held in a war zone.’
In addition, no reasons had been given to the court to show that cuffs on the legs and hands of Kamoli were necessary or that they would indeed cause an uproar at the funeral. The CJ said that there was no evidence of such threats and in his view the argument was put up in argument to ‘intimidate or frighten’. Further, ‘to manacle the applicant in the manner suggested would be a violation of [his] right to dignity and freedom from inhuman and degrading treatment.’
The judgment stands as a strong – and welcome – contrast to a number of recent decisions in the region where judges of other jurisdictions have dealt with similar questions from a completely different perspective. They have been made without reference to rights or international law and seem to be influenced by the kind of factors, put up in argument, that, in this case, were dismissed as intended merely ‘to intimidate or frighten’.
* Read account of Kamoli's attendance at the funeral