n African Human Rights Law Journal - Establishing state liability for personal liberty violations arising from arrest, detention and malicious prosecution in Lesotho

Volume 17 Number 1
  • ISSN : 1609-073X
  • E-ISSN: 1996-2096



This article seeks to analyse the case law relating to infringements of the personal liberty rights of the individual through the traditional common law actions for damages for wrongful arrest, unlawful detention and malicious prosecution. These rights are often violated by the police – the principal law enforcement agents of government. Sometimes, too, nonlaw enforcement personnel of the Lesotho army unwittingly get embroiled in law enforcement duties, thereby involving the government in incurring liability in damages for the numerous human rights violations that trail their encounter with members of the public. Although there are provisions in the Constitution of Lesotho of 1993 through which the individual may ventilate his or her entrenched fundamental rights, victims of these breaches tend to enforce their security of the person and human dignity rights in the courts in Lesotho by way of the common law damages in delict. In an attempt to establish the liability of the state in this instance, one witnesses the interplay of the constitutional guarantee of rights, the protections afforded the individual through the Criminal Procedure and Evidence Act of 1981 and the common law cause of action. The present investigation concentrates on the primary problem of establishing the liability of the state first and foremost, as an assessment of the quantum of the damages recoverable is an exercise a court can undertake only after the liability issue has been resolved or ascertained. This contribution, therefore, examines the many instances whereby, in the purported performance of law enforcement duties of the state, the police and army personnel have infringed the rights of the citizens and, in the process, expose the brutal nature of the injuries the victims have suffered and the role the courts have played in their endeavour to uphold the rights to security of the person and human dignity as well as to maintain the rule of law in Lesotho.

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