Judicial officers cannot afford to be naive about the efficacy of the criminal justice process to hold the police accountable and provide adequate compensatory redress to victims of police brutality
June 26, 2023
Kabelo Khabanyane v Commissioner of Police and 2 others
LSHC 11 Civ (2023)
High Court of Lesotho
SP Sakoane, CJ
March 7, 2023
Reported by Faith Wanjiku and Bonface Nyamweya
Criminal law-ingredients-actus reus- assault – claim for damages for assault by the police – where the police assaulted the plaintiff at his home – where the plaintiff was neither suspected of committing any offence nor charged – where the assault was immediately reported to superiors but no action was taken- whether judicial officers could afford to be naive about the efficacy of the criminal justice process to hold the police accountable and provide adequate compensatory redress to victims of police brutality- Constitution of Lesotho, 1993, section 11; Criminal Procedure And Evidence Act, 1981, sections 39, 40, 321; Inquests Proclamation, 1954, sections 6 (f), 17; Penal Code, 2010, section 31 (2); Police Service Act, 1998, section 22.
Police brutality had claimed the scalp of a person with a visual disability. That happened on December 15, 2015 when the police rudely woke up the plaintiff from his sleep at dawn and assaulted him. The plaintiff reported the assault the same day the Officer Commanding Mafeteng police and was given a medical form in which the doctor recorded the injuries. Nothing seemed to have been done to charge and prosecute the responsible police officers.
Whether judicial officers could afford to be naive about the efficacy of the criminal justice process to hold the police accountable and provide adequate compensatory redress to victims of police brutality.
Relevant provisions of the law
Constitution of Lesotho, 1993
Section 11- Right to respect for private and family life
11 (1) Every person shall be entitled to respect for his private and family life and his home.
(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision-
(a) in the interests of defense, public safety, public order, public morality or public health; or
(b) for the purpose of protecting the rights and freedoms of other persons.
Criminal Procedure and Evidence Act, 1981
Section 39- Assistance by private persons to police
(1) Every male person between the ages of 16 and 60 is, when called upon by any policeman, authorised and required to assist the policeman in making any arrest which by law the policeman is authorised to make, of any person charged with or suspected of the commission of any offence, or to assist the policeman in retaining the custody of any person so arrested.
(2) A male person who, without reasonable excuse, refuses or fails to comply with sub-section (1) is guilty of an offence and liable to 100 maloti and to one month’s imprisonment.
Section 40- Entry by breaking to effect arrest
(1) Subject to sub-section (2) any peace officer or private person who is by law authorised or required to arrest any person known or suspected to have committed any offence, may break open for that purpose the doors and windows of, and may enter and search, any premises in which the person whose arrest is required is known or suspected to be.
(2) Any peace officer or private person shall not act under sub-section (1) unless he has previously failed to obtain admission after having audibly demanded entry and notified the purpose for which he seeks to enter the premises.
- The plaintiff slept peacefully in his house when the police arrived and knocked. They ordered him to open the house and, after a short time, they forcefully opened the door and pushed him out. As the plaintiff was pushed out of the house, he fell on the ground. That much was not seriously disputed. What seemed to be in dispute was whether in the process he was kicked, beaten with a stick and thrown to the ground or he just fell.
- The version of the plaintiff that he was made to fall on the ground by the police while being kicked and beaten with a stick was corroborated by PW2. That was the witness who went to the plaintiff’s home at the behest of the police and in their company. PW2 saw the angry mood the police were in and the aggressive manner in which they entered the house, pushing out the plaintiff and kicking and beating him with a stick.
- The plaintiff and PW2 testified in a straightforward manner and were not shaken under cross-examination. They came across as honest and truthful witnesses.
- DWl’s evidence that the plaintiff got out of the house holding a stick with which he attempted to beat them was fanciful. It was improbable that a visually impaired person could fight six police officers who ought to have been armed. He simply could not fight people he could not see. The plaintiff’s walking stick was brought to him after the police had forced him out of the house and beaten him.
- DWl’s denial that PW2 accompanied the police to the plaintiff’s home was a cynical attempt to remove him from the place of the events. The denial rings hollow. It was never even put to PW2 that he did not take the police to the plaintiff’s house. Furthermore, DWI conceded that the plaintiff did not attempt to attack the police with a stick and that he was not even a suspect. DWI downplayed their callous behaviour. That was borne out by the fact that DWI did not even bother to ask the plaintiff his names or offer an apology after hearing his mother said he had a visual disability. They just left.
- There was no evidence that the 14 police called upon the plaintiff to assist them in making an arrest of any person charged with or suspected of committing crime. They approached the plaintiff in an aggressive manner, shouting and ordering him to open the door of the house as if he was the one about to be arrested. When he hesitated, they forcefully entered the house, pulled him out kicking and beating him with a stick. They treated him like a suspect resisting arrest. The concession by DWl that the plaintiff was not a suspect made the defendants’ case worse, in that the police unjustifiably invaded the plaintiff’s constitutional right to respect for private and family life guaranteed in section 11 of the Constitution.
- The sanctity of a person’s home was jealously protected by the Constitution. It was subject to the highest expectation of privacy reflecting the old adage that the home was a person’s castle. The law did not allow police officers to enter the house without permission. The Criminal Procedure and Evidence Act, 1981 carefully delineated the narrow circumstances under which the police could forcefully enter and the procedure to follow when entering for the purpose of making an arrest.
- The police had no business to wake him up rudely, enter his house without permission and push him out. They had no authority in law to touch him at all or to enter his house without permission.
- The medical report records that the plaintiff suffered injuries on the muscles, the upper part of the right leg to the right side of the stomach and on the elbow of the right hand. The injuries did not cause immediate or long-term disability. The degree of force used to inflict the injuries was mild.
- The plaintiff was assaulted in the manner described by him and as witnessed by PW2. He sustained injuries described in the medical report. The police were liable for the assault and injuries caused.
- Protecting the rule of law required that there ought to be official investigations and prosecutions whenever people were seriously injured, died in custody or were arbitrarily killed by agents of the State. The essential purpose of investigations and prosecutions was to secure the effective implementation of laws safeguarding the right to life, freedom from torture and inhuman and degrading treatment. Responsible State agents ought to be held accountable whenever people were injured, tortured or died under their responsibility.
- The magistrate ought to hold an inquest and subpoena witnesses to give evidence or to produce any document or thing. If before or at the termination of the inquest the Magistrate was of the opinion that the death was caused by police officers, s/he had to cause them to be arrested or summoned in order to be prosecuted.
- The authority did not bite simply because in the first place it was never intended to bite. It lacked the power to directly receive complaints from the victims – let alone powers to investigate and prosecute. It only dealt with complaints referred to it by the Minister and the Commissioner of Police.
- Judicial officers could not afford to be naive about the efficacy of the criminal justice process to hold the police accountable and provide adequate compensatory redress to victims of police brutality. The standard practice of the police was to issue medical forms to victims when they reported brutalization and assaults by the police, albeit that might not be in all complaints brought to the attention of the police. The medical form was issued when a criminal complaint was lodged by the victim and a criminal case opened. The purpose was to enable the victim undergo medical examination to prove the injuries suffered. It was an important medical report that should be filed in the docket as part of its contents. The victim got a copy and, as was the practice, victims relied on those medical forms in civil claims against the police.
- Although victims registered complaints of assault and torture, often no progress was made in arrests and investigations. The victim, as the most crucial prosecution witness, did not get to be informed whether and when a criminal case would be brought. As a result, in most cases victims were left with no option but to sue the Commissioner of Police who in most cases, was readily defended by the Attorney General notwithstanding that the police were in possession of a medical record of his or her injuries.
- A victim got compensation only in the event of conviction. However, convictions were realistically possible only if thorough investigations were done and cases were well prosecuted. That was the first hurdle that faced the victim. The second hurdle was that the victim had to lodge a proper application and not just express a desire to be compensated. Compensation was sought from the accused and not the Crown. Thus, the Crown was absolved from the obligation to compensate even if a convicted police officer did not have means to compensate the victim.
- The third hurdle was that the victim only got an award of compensation that fell within the civil jurisdictional limit of the court and, if there was no law providing otherwise, the award was limited to M400.00 – a limit that constituted a travesty of justice. The fourth hurdle was that if the victim got an award, s/he was deprived of another chance to sue for damages if that suit was based on the same cause of action or complaint. The victim was, therefore, well-advised careful to make a proper assessment of all possible future losses and included them in the section 321 application for compensation.
- Once it was accepted, as it had to, that the plaintiff was not suspected of committing any crime, the police had no business at all disturbing him in his sleep, ordering him to come out of the house, forcefully entering and pushing him out and beating him. That was disrespect of plaintiffs rights to privacy, invasion of his home and liberty was completely unnecessary, unjustified and legally impermissible. The police should not have touched his body at all. Their aggression and resort to use of force were unwarranted and unlawful.
- Where humiliation was part of the assault, the contumelia was an integral part of the assault and aggravated damages. The humiliation suffered by the plaintiff arose from the following features:
50.1 The police committed the delict in the sanctuary of the plaintiff at a time and hour of his comfort. He was rudely woken up and assaulted in front of his wife and other villagers. The police behaved in a violent and intimidatory manner and even mocked him when informed that he has visual disability.
50.2 The plaintiff did not pose any danger to them, but even if he posed a danger, he was perfectly within his rights as a law-abiding citizen to protect his home, himself and wife from all manner of strangers.
- The high-handed and undignified manner in which the police treated the plaintiff had the effect of bruising his personal feelings, demeaning his pride and integrity.
i General damages in the amount ofM150 000.00.
ii Interest at the prescribed rate on the aforesaid amount from date of judgment to date of payment.
iii Costs of suit.
Relevance to the Kenyan jurisprudence
Article 244 of the Constitution of Kenya 2010 set out the objects and functions of the National Police Service, and demanded compliance by the police with constitutional standards of human rights and fundamental freedoms. Section 4 of the Office of Director of Pubic Prosecution Act, 2012 (ODPP Act) provided the guiding principles of the ODPP. The failure to investigate the petitioner’s complaint compromised the very validity of the Government and more so when the Executive failed to protect a citizen from victimization it called into question the legitimacy of its exclusive prosecutorial powers.
In the case of Feisal & 19 others v Kandie, Chief Inspector of Police, OCS, Ongata Rongai Police Station & 7 others; National Police Service Commission & another (Interested Party)  eKLR, the court held that the protection of individuals from arbitrary punishment and abrogation of rights was one of the central purposes incumbent upon judicial process. Wrongful arrest involved deprivation of a person’s liberty; it consisted of arresting and holding a person without legal justification.
Moreover, in the case of Mwanasi & 9 others v Chief of the Kenya Defence Forces & another  eKLR, the court held that the right to life not only encompassed the prohibition against unlawful taking away of actual life but included the deprivation of the rights that facilitated the means through which a person’s life was sustained in dignity that was the right to human dignity and means of livelihood.
This case is therefore relevant to the Kenyan jurisprudence as it widens the understanding of law on matters of arrest of a suspect as it holds that the police have no business at all disturbing a person in his sleep, ordering him to come out of the house, forcefully entering and pushing him out and beating him as long as he is not a crime suspect for that is disrespect of the rights to privacy, invasion of his home and liberty.