Lesotho
Information current as of: May 30, 2014
General
Official Country Name
Kingdom of Lesotho (Lesotho). [1]
Geographical Region
Africa (Southern Africa). [2]
Death Penalty Law Status
Abolitionist de facto. Lesotho reported to the U.N. Human Rights Council that its last execution was carried out in 1995. [3]
Methods of Execution
Hanging. [4]
References
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Country Details
Language(s)
Sesotho and English are the major languages in Lesotho. [1]
Population
2,200,000. 2,200,000. [2]
Number of Individuals Currently Under Sentence of Death
Two.
At the end of 2018, there were two people on death row. [3]
(This question was last updated on May 30, 2019.)
Annual Number of Reported Executions
Executions in 2020 to date (last updated on October 22, 2020)
0. [4]
Executions in 2019
0. [5]
Executions in 2018
0. [6]
Executions in 2017
0. [7]
Executions in 2016
0. [8]
Executions in 2015
0. [9]
Executions in 2014
0. [10]
Executions in 2013
0. [11]
Executions in 2012
0. [12]
Executions in 2011
0. [13]
Executions in 2010
0. [14]
Executions in 2009
0. [15]
Executions in 2008
0. [16]
Executions in 2007
0. [17]
Year of Last Known Execution
1995. Lesotho reported to the U.N. Human Rights Council that its last execution was carried out in 1995. [18]
References
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Crimes and Offenders Punishable By Death
Crimes Punishable by Death
Murder.
Murder is punishable by death, [1] but only when there are no “extenuating circumstances.” [2] Courts are instructed to determine the existence of extenuating circumstances based upon “the standards of behaviour of an ordinary person of the class of the community to which the convicted person belongs.” [3]
Rape Not Resulting in Death.
A person who commits a sexual assault with the knowledge or reasonable suspicion of infection with HIV is punishable by death. [4] (Lesotho stated to the U.N. Human Rights Council that capital punishment only applied to “statutory rape,” which should be understood as rape by an HIV-infected person, rather than child rape as it is defined in other jurisdictions. [5] )
Treason.
High treason is punishable by death. While the Penal Code does not offer a definition of “high treason,” treason is defined as “preparing or endeavouring” to overthrow the government, to alter laws or policies by force, to usurp the power of the state, to assist an enemy in time of war, or to assist an armed invasion of the country. [6]
Military Offenses Not Resulting in Death.
Under Sections 41-43 and 48-49 of the Lesotho Defense Force Act No. 4 of 1996, which we did not obtain, “mutiny, failing to suppress mutiny, aiding the enemy, communication with the enemy and cowardly behavior” were punishable by death as recently as 2001. [7]
Comments.
We were not able to consult Lesotho’s Defense Force Act No. 4 of 1996, but a report from circa 2001 indicates that the death penalty applies for some military offenses. Lesotho’s 2010 national report to the UN Universal Periodic Review, however, indicates that only murder, treason, and statutory rape carry the death penalty. [8]
Courts apply extenuating circumstances to virtually eliminate capital sentences. [9] Although the law stated by courts technically requires no finding of aggravating factors to pronounce a sentence of death, in practice courts may treat the absence of aggravating factors as an extenuating circumstance, [10] so there is some argument that the death penalty legally applies only for aggravated murders.
Does the country have a mandatory death penalty?
No. The Penal Code Act states that an offender who commits murder “in the presence of extenuating circumstances” shall receive a lesser sentence. [11] Similarly, the Sexual Offences Act of 2003 requires considering “extenuating circumstances or… the individual circumstances of the accused” before applying the punishment provided by law. [12] We did not find an explicit mitigation provision for treason, but reports indicate that courts interpret the requirement that they consider extenuating circumstances to demand broad discretion, and seldom pronounce or confirm a death sentence. This has been the case for at least 20 years. [13] A report written in or after 2004 by a law professor at the National University of Lesotho indicates that judges (many of whom hail from South Africa, where the death penalty has been abolished) apply the provision prohibiting the death penalty in cases involving extenuating circumstances quite broadly, effectively eliminating death sentences in Lesotho. [14]
For Which Offenses, If Any, Is a Mandatory Death Sentence Imposed?
None, there is no mandatory death penalty (see answer on the mandatory death penalty).
Crimes For Which Individuals Have Been Executed Since January 2008:
None. Lesotho reported to the U.N. Human Rights Council that its last execution was carried out in 1995. [15]
Categories of Offenders Excluded From the Death Penalty:
Individuals Below Age 18 At Time of Crime.
Section 297(b) of the Criminal Procedure and Evidence Act of 1981 excludes individuals from execution for crimes committed while under the age of 18. [16] Moreover, the Penal Code specifically requires that a lesser sentence be applied to those convicted of a murder committed before the age of 18. [17] This conforms with Lesotho’s obligations as a party to the ICCPR, [18] the Convention on the Rights of the Child, [19] and the African Charter on the Rights and Welfare of the Child, [20] which prohibit such executions.
Pregnant Women.
Section 299 of the Criminal Procedure and Evidence Act of 1981 excludes pregnant women from execution. [21] Moreover, the Penal Code specifically requires that a lesser sentence be applied to women convicted of murder if they are pregnant at the time of sentence. [22] This conforms with Lesotho’s international obligations as a state party to the ICCPR [23] and the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, [24] which prohibit the execution of pregnant women.
Women With Small Children.
While we found no law specifically excluding women with small children from execution, Lesotho has acceded to the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa, [25] which prohibits the execution of nursing women.
Mentally Ill.
The Penal Code provides that no one may be convicted of a criminal offense “if he or she proves on the balance of probabilities that at the time of the commission of the offence he or she was suffering from mental disorder of such a nature that he or she was substantially unable to appreciate the wrongfulness of his or her actions or that he or she was unable to conduct himself or herself in accordance with the requirements of the law.” [26]
We found no law, however, excluding capital punishment for individuals suffering from mental illness at the time of sentencing or execution of sentence.
Intellectually Disabled.
The Penal Code provides that no one may be convicted of a criminal offense “if he or she proves on the balance of probabilities that at the time of the commission of the offence he or she was suffering from mental disorder of such a nature that he or she was substantially unable to appreciate the wrongfulness of his or her actions or that he or she was unable to conduct himself or herself in accordance with the requirements of the law.” [27]
We found no law, however, excluding capital punishment for individuals suffering from intellectual disabilities at the time of sentencing or execution of sentence.
References
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International Commitments
ICCPR
Party?
Yes. [1]
Date of Accession
September 9, 1992. [2]
Signed?
No. [3]
Date of Signature
Not Applicable.
First Optional Protocol to the ICCPR, Recognizing Jurisdiction of the Human Rights Committee
Party?
Yes. [4]
Date of Accession
September 6, 2000. [5]
Signed?
No. [6]
Date of Signature
Not Applicable.
Second Optional Protocol to the ICCPR, Toward the Abolition of the Death Penalty
Party?
No. [7]
Date of Accession
Not Applicable.
Signed?
No. [8]
Date of Signature
Not Applicable.
American Convention on Human Rights
Party?
Not Applicable.
Date of Accession
Signed?
Not Applicable.
Date of Signature
Death Penalty Protocol to the ACHR
Party?
Not Applicable.
Date of Accession
Signed?
Not Applicable.
Date of Signature
African Charter on Human and Peoples' Rights (ACHPR)
Party?
Yes. [9]
Date of Accession
February 10, 1992. [10]
Signed?
Yes. [11]
Date of Signature
March 7, 1984. [12]
Protocol to the ACHPR on the Rights of Women in Africa
Party?
Yes. [13]
Date of Accession
October 26, 2004. [14]
Signed?
Yes. [15]
Date of Signature
February 27, 2004. [16]
African Charter on the Rights and Welfare of the Child
Party?
Yes. [17]
Date of Accession
September 27, 1999. [18]
Signed?
No. [19]
Date of Signature
Not Applicable.
Arab Charter on Human Rights
Party?
Not Applicable.
Date of Accession
Signed?
Not Applicable.
Date of Signature
2018 Record of Votes on the UN General Assembly Moratorium Resolution
Cosponsor
No. [20]
Vote
Abstained. [21]
Signed the Note Verbale of Dissociation
No. [22]
2016 Record of Votes on the UN General Assembly Moratorium Resolution
Cosponsor
Yes. [23]
Vote
Abstained. [24]
Signed the Note Verbale of Dissociation
No. [25]
2014 Record of Votes on the UN General Assembly Moratorium Resolution
Cosponsor
Vote
Not Present. [26]
Signed the Note Verbale of Dissociation
2012 Record of Votes on the UN General Assembly Moratorium Resolution
Cosponsor
No. [27]
Vote
Abstained. [28]
Signed the Note Verbale of Dissociation
No. [29]
2010 Record of Votes on the UN General Assembly Moratorium Resolution
Cosponsor
No. [30]
Vote
Abstained. [31]
Signed the Note Verbale of Dissociation
No. [32]
2008 Record of Votes on the UN General Assembly Moratorium Resolution
Cosponsor
No. [33]
Vote
Abstained. [34]
Signed the Note Verbale of Dissociation
No. [35]
2007 Record of Votes on the UN General Assembly Moratorium Resolution
Cosponsor
No. [36]
Vote
Abstained. [37]
Signed the Note Verbale of Dissociation
No. [38]
References
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Death Penalty In Law
Does the country’s constitution make reference to capital punishment?
The Constitution provides: “Every human being has an inherent right to life. No one shall be arbitrarily deprived of his life.” [1] This right is not violated if an offender dies “in execution of the sentence of death imposed by a court in respect of a criminal offence under the law of Lesotho of which he has been convicted.” [2]
Does the country’s constitution make reference to international law?
No. [3]
Have there been any significant changes in the application of the death penalty over the last several years?
Lesotho reported to the U.N. Human Rights Council that its last execution was carried out in 1995. [4] In the past decade, we have only found reports of one death sentence being handed down, in 2013, for multiple murder. [5]
Nevertheless, the use of capital punishment was expanded in 2003 when the Sexual Offences Act made rape by an HIV-infected person a capital offense. [6] Even though Lesotho has not carried out an execution in almost two decades, it has abstained from voting on all four UN General Assembly’s Resolution on a Global Moratorium on the use of the death penalty. [7] It also rejected the Human Rights Council’s recommendation to formalize the moratorium on the death penalty, abolish capital punishment, and conform the scope of the death penalty to its international treaty obligations. [8]
In a survey of cases we found that many prosecutions are unsuccessful and that death sentences are almost always commuted on appeal. [9]
Is there currently an official moratorium on executions within the country?
No. Even though Lesotho has not carried out an execution in almost two decades, it has abstained from voting on all four UN General Assembly’s Resolution on a Global Moratorium on the use of the death penalty. [10] It also rejected the Human Rights Council’s recommendation to formalize the moratorium on the death penalty, abolish capital punishment, and conform the scope of the death penalty to its international treaty obligations. [11]
Have there been any significant published cases concerning the death penalty in national courts?
We have not found any landmark decisions, but our review of case law suggests that the death penalty is applied only for aggravated murders, and that the courts do not impose death sentences for murders that lack any aggravating factors. [12] A report written in or after 2004 by a law professor at the National University of Lesotho indicates that judges apply the provision prohibiting the death penalty in cases involving extenuating circumstances broadly, effectively eliminating death sentences in Lesotho. [13]
Where can one locate or access judicial decisions regarding the death penalty?
The Southern African Legal Information Institute (http://www.saflii.org/cgi-bin/search.pl) makes a large volume of judicial decisions available.
The Lesotho Legal Information Institute (http://www.lesotholii.org/) regularly uploads judgments of the Court of Appeal and the High Court.
What is the clemency process?
Petitions for pardon are submitted to a Pardons Committee, and the King exercises the prerogative of mercy in accordance with the advice of the Committee. [14] The King may grant pardon, respite, or commutation of the sentence. [15] The Pardons Committee, which consists of a Chairman and two other members appointed by the King, deliberates on submissions from the accused and counsel, judges involved in sentencing and appeals, the Director of Public Prosecutions and a District Secretary. [16]
Are jury trials provided for defendants charged with capital offenses?
No.In capital cases judges are advised by “assessors,” but their opinions are not binding and judges will sometimes deliver a lesser sentence than the assessors recommend. [17]
Brief Description of Appellate Process
Capital cases are decided in the High Court and are appealed to the Court of Appeals, which reviews questions of law and the facts as established by the court below. [18] The Constitution discusses some grounds on which appeals are as of right. [19] Appeals of capital sentences are automatic. [20]
Without access to the Criminal Procedure and Evidence Act, which we were unable to locate, it is difficult to describe the appellate process in further detail.
References
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Death Penalty In Practice
Where Are Death-Sentenced Prisoners incarcerated?
Maseru Central Prison is a major facility but we do not know which prisons, if any, house death row inmates. [1]
Description of Prison Conditions
We found no reports on prison conditions on death row. Prison conditions generally are inadequate and facilities are in disrepair.
Violence among prisoners is a serious concern. According to a Lesotho Correctional Service (LCS) official, prisoners brutalize other prisoners. The head of the Lesotho Ex-Offenders Association reported that rape was common among the prisoners, exposing them to the risk of HIV and other sexually transmitted diseases. A full-time HIV/AIDS coordinator, condoms, HIV testing, counseling, and treatment have been made available to the prisoners by the LCS in order to prevent the spread of HIV. Nine prisoners have reportedly died in custody from AIDS, tuberculosis, cancer, and unconfirmed causes.
Prison guards also brutalize prisoners. In August 2012, LCS officers at the Leribe women’s correctional facility reportedly stripped six inmates naked, locked them in a cell for four days, and gave them only two meals per day to punish a fight. [2]
Prisoners are given water, but sanitation and facilities are poor. Facilities lack bedding and proper ventilation and heating/cooling systems, and some do not have proper lighting. Maseru Central Prison does not have food shortages, but the food quality is poor. Principal chiefs, church ministers, representatives of the business community, advocates of the court, and other citizens visit prisons to provide toiletries, food, and other services. [3]
Prisons generally have insufficient medical supplies and lack round-the-clock medical wards, which causes guards to confine sick prisoners to their cells from 3 pm to 6 am. However, prisoners can receive free medical care from government hospitals and some facilities own ambulances for emergency transportation. [4]
Prisoners with disabilities rely on voluntary assistance from other prisoners, as the LCS does not accommodate their special needs and prison buildings lack ramps and railings. [5]
Prisons have outdated and inadequate manual recordkeeping systems. The Office of the Ombudsman did not receive any complaints from prisoners in 2013, but this could be because prisoners are often unaware that they could submit complaints. Also, prisoners may fear retaliation, as complaints must go through prison authorities. [6]
Prisoners have reasonable access to visitors and can practice religious observance. Although prisoners can submit complaints to judicial authorities without censorship and request investigation, the LCS did not conduct any investigations in 2013. According to the inmates at the Maseru Central Prison, authorities only respond to some complaints. The International Committee of the Red Cross also visited Maseru Central Prison in September 2013. [7]
Are there any known foreign nationals currently under sentence of death?
We found no reports of foreigners on death row. [8] The last individual executed (in 1995) was reportedly a foreigner. [9]
What are the nationalities of the known foreign nationals on death row?
We found no reports of foreigners on death row. [10]
Are there any known women currently under sentence of death?
We found no reports of women under sentence of death.
Are there any reports of individuals currently under sentence of death who may have been under the age of 18 at the time the crime was committed?
We found no reports of individuals under sentence of death for crimes committed while under the age of 18. Amnesty International reports that there have been no known executions of juveniles in Lesotho since 1990, when it started keeping records. [11]
Comments regarding the racial/ethnic composition on death row
We found no information on the racial or ethnic composition on death row.
Are there lawyers available for indigent defendants facing capital trials?
Lesotho reports that the Legal Aid Act of 1978 extends legal aid to defendants who face capital charges. [12] The government reports having established a Legal Aid Department under the Legal Aid Act, which holds roving Legal Aid Clinics and provides pro deo representation for individuals likely to face capital punishment. [13]
In practice, indigent defendants in both civil and criminal cases are provided with lawyers and free legal counsel is usually available from either the state or an NGO. [14] According to a law professor at the National University of Lesotho, legal aid is always assured for capital defendants, who are permitted to choose which attorney they want. [15] An indigent defendant typically selects a “famous” attorney who is usually too overloaded to represent him, and ends up working with the Registrar to select an available attorney—who is usually younger and somewhat less experienced than the defendant’s first selection. [16]
Are there lawyers available for indigent prisoners on appeal?
Lesotho reports that the Legal Aid Act of 1978 extends legal aid to defendants who face capital charges. [17] The government reports having established a Legal Aid Department under the Legal Aid Act, which holds and provides pro deo representation for individuals likely to face capital punishment. [18]
In practice, indigent defendants in both civil and criminal cases are provided with lawyers and free legal counsel is usually available from either the state or an NGO. [19] According to a law professor at the National University of Lesotho, appeal against a capital sentence is automatic and pro deo appointment of counsel for an indigent appellant is assured. [20]
Comments on Quality of Legal Representation
A review of case law suggests that attorneys or courts are effective at protecting the rights of the accused. [21] Well-known attorneys may be overloaded, and indigent defendants typically must select a relatively less experienced attorney. [22] Detainees are reportedly allowed prompt access to their lawyers, [23] can consult with an attorney of their choice, have adequate time to prepare their case, and may access government-held evidence. [24]
Free legal counsel is provided by either the state or an NGO. NGOs maintain a few legal aid clinics. Although the Legal Aid Division under the Ministry of Justice and Correctional Service also offers free legal assistance, the severe lack of resources undermines its effectiveness. [25]
Other Comments on Criminal Justice System
The Constitution assures the independence of the judiciary and the right to fair trial, [26] and the government generally respects this. [27] Our review of case law corroborates that the judiciary enforces the right to a fair trial. [28] Defendants enjoy the right to the presumption of innocence. [29] Trials are open to the public. [30] Defendants also have the right to access unclassified, government-held evidence, and the government cannot use classified evidence against a defendant. [31]
The criminal justice system, however, has failings. While confessions obtained through torture are not admissible in court, evidence obtained as the result of torture is. Bail for individuals charged with premeditated homicide may not be granted or may be difficult to obtain. There can be delays in bringing a case to trial and individuals suspected of a capital offense are generally arrested for a preliminary investigation, facing an average of two to four years’ detention before trial. In theory, preliminary investigation is intended to result in the discharge of some cases; in practice, no case is ever discharged at this stage of the proceedings. [32]
References
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Decisions of International Human Rights Bodies
Decisions of Human Rights Committee
The Human Rights Committee, in its 1999 concluding observations, noted that the death penalty was in practice no longer applied, and called for its abolition. [1]
Decisions of Other Human Rights Bodies
In 2010, members of the Human Rights Council recommended that Lesotho formalize its de facto moratorium on the death penalty, abolish capital punishment, continue commuting death sentences to life imprisonment, ratify the Second Optional Protocol to the ICCPR with a view to abolish the death penalty, and conform the scope of the death penalty to its international treaty obligations. [2] Lesotho rejected the recommendations, indicating that it only applies the death penalty for murder, statutory rape, and high treason. [3]
References
[1]
[2]
[3]
Additional Sources and Contacts
Direct member(s) of World Coalition Against the Death Penalty
None.
Other non-governmental organizations and individuals engaged in advocacy surrounding the death penalty
None.
Helpful Reports and Publications
Amnesty Intl., Lesotho: Torture, political killings and abuses against trade unionists, AFR 33/01/92, Apr. 30, 1992.
British Institute of International and Comparative Law, Lesotho, http://www.biicl.org/files/2158_basic_country_report_lesotho.pdf, circa 2001.
Moses O A Owori, The Death Penalty in Lesotho: The Law and Practice, British Institute of International and Comparative Law, http://www.biicl.org/files/2197_country_report_lesotho_owori.pdf, published 2004 or later.
Additional notes regarding this country
None.