Lesotho

Relevant Legislation

Summary

Lesotho does not have any form of national whistleblower protection law, nor do there appear to be any moves toward passing specific laws protecting whistleblowers. As an insular and parochial country with a singular culture and language, constitutional practices have largely been ignored and, in general, whistleblowing as a culture has not yet taken root – whistleblowers are often viewed as instigators of social disturbance.

However, Lesotho does have secondary laws that provide some protections for whistleblowers. The country also has a complicated landscape with regards to Freedom of Expression and Freedom of the Media. Although the country decriminalised defamation in 2018, the nation still sees frequent abuses against journalists, and the media lacks independence. This is a concern for whistleblowing because it reduces the possibility of working with the media to get whistleblower revelations to the public.

Whistleblower Laws and Policies

Lesotho does not have any whistleblower laws in place. The closest thing to a national whistleblowing law in the country is the Lesotho Revenue Authority Whistleblowing Policy (the Policy). The Lesotho Revenue Authority (RSL) is an operationally autonomous body that was established by the Revenue Services Lesotho Act No. 14 of 2001. One of the RLS’s key missions is fighting corruption.

The Policy’s core aims are to provide an avenue for individuals to raise concerns related to fraud, corruption, or any other misconduct (particularly tied to tax evasion) and to ensure that those who raise concerns will be protected from victimisation and retaliation. It includes provisions for ensuring whistleblowers get responses to their reports. The Policy provides a good framework on which Lesotho could base a national whistleblower law, however, there is no indication that the country’s government is currently taking any steps toward the establishment of whistleblower legislation.

The emphasis on whistleblowing in terms of the Lesotho Revenue Authority Whistleblowing policy appears to relate to incidents of tax fraud or evasion and/or tax-related corruption and lacks specificity of remedial action a whistleblower would be entitled to in the event of victimisation because of making a disclosure.

Although Lesotho does not have national whistleblower laws, it does have anti-corruption legislation in place, which goes hand-in-hand with the LRA whistleblower policy. The Prevention of Corruption and Economic Offences Act of 1999 and the Prevention of Corruption and Economic Offences (Amendment) Act of 2006 provide the only national legal framework tied to reporting misconduct, even though they do not reference whistleblowing by name. However, it seems that these laws, as well as the LRA policy, appear to be reactive and driven by scandalous exposure of corruption. It can therefore be said that there are no pre-emptive measures in place to prevent victimisation after the exposure of the unlawful conduct. It also appears that combating such illicit conduct is largely through the enforcement of the criminal penal code, and very few civil protections are offered to whistleblowers whose identities may become exposed, thus limiting the extent to which whistleblowers may be prepared to report unlawful conduct for fear of reprisals.

Additionally, the absence of a clear roadmap in terms of reporting a disclosure and the time frames for remedial action or addressing the complaint is another hindrance to the establishment of a proper and robust culture of whistleblowing and engendering a sense of civic duty where ordinary citizens and civil society organisations would feel compelled to report corruption in the interests of the public and general society.

The Act established a Directorate on Corruption and Economic Crime (the DCEO). According to the amended Act, the Director-General of the DCEO is appointed by a board consisting of a diverse range of members. The Director-General is then responsible for selecting their support staff. Under the Act, individuals can report corruption to the DCEO, and informers have the right to remain anonymous and receive protection according to Section 50 of the original Act. Additionally, the Act states that no civil, disciplinary, or criminal action shall be instituted against an individual who discloses in good faith, not for personal gain, and with a reasonable belief that the information they are disclosing is evidence of impropriety.

Weaknesses of the Laws

In Lesotho, the key weakness is the absence of a clear national whistleblower law guaranteeing the safety of persons making disclosures and ensuring that retaliatory action will be harshly dealt with; without this, there can be no culture of whistleblowing or efforts to create a more transparent society. In looking to the only existing legislation in this space, the Prevention of Corruption and Economic Offences Act, two major weaknesses can have a chilling effect on the willingness of potential whistleblowers to come forward.

First, the Act criminalises making a false, frivolous, or groundless complaint or allegation, with a punishment of a fine of at least M5,000 (about 270 USD) and/or imprisonment for at least five years. Second, the Act criminalises disclosing any information about an investigation to a person who is the subject of the investigation. It also criminalises disclosing the identity of the subject of an investigation to any person, including through a publication. Like with making a false complaint, conviction is accompanied by a fine of at least M5,000 (about 270 USD) and/or imprisonment for at least five years. Not only does this demonstrate the lack of a free press in Lesotho (discussed further under “Media and Speech Laws”), but often, whistleblowers do not understand the full scope of the misconduct they are reporting. That means they may disclose to someone involved in the wrongdoing they are reporting without realising their involvement, inadvertently putting themselves in legal danger. The risk of such major punishments for revealing information to the wrong person can have a major effect on the willingness of individuals to come forward and report wrongdoing. If there are no guarantees which safeguard the integrity of the reporting mechanisms and procedures, then whistleblowers will remain dormant and silent. The culture of restricting freedom of expression and limiting the roles of civil society organisations and the freedom of the press to report on corruption, except through the established channels, is a further hindrance in Lesotho to the genesis of a true whistleblower culture.

Freedom of Expression and Freedom of the Media

In its 2024 World Press Freedom Index, Reporters Without Borders ranked Lesotho 122nd out of 180 countries for press freedom. This was a serious drop from the country’s 2023 score of 67, reflecting the substantial decrease in media freedom in the country as represented by the brutal, orchestrated murder of investigative journalist Ralikonelo Joki in May 2023.

Joki hosted a regular current affairs radio program called “Hlokoana-La-Tsela” (Heard it on the Grapevine) on Ts’enolo FM, a privately-owned radio station. On his show, Joki regularly denounced corruption under Lesotho’s previous government and was regularly harassed in response. He frequently received death threats from anonymous Facebook accounts. Earlier in 2023, before his murder, he was publicly threatened by the head of the Basotho National Party (BNP), a member of the ruling coalition that had been ousted, who said Joki should be “dealt with” in a Facebook post that many BNP supporters reposted. In the two months before his murder, Joki had been investigating an alleged case of real estate corruption involving private sector companies.

While Joki’s murder was unexpected, journalists in Lesotho are frequently subjected to intimidation and harassment. In November 2021, a journalist who had covered weapons theft was tortured using a plastic bag over his head. In 2020, during a protest, a journalist was shot at by police, and several of her colleagues were arbitrarily arrested. This kind of violence leads to regular self-censorship by journalists.

As far as Lesotho’s media and speech laws, the country made major progress in 2018 when the Constitutional Court decriminalised defamation. However, press freedom remains fragile. Lesotho’s media landscape is heavily polarised and is characterised by a lack of independence. Though the country has ten weekly newspapers (one state-owned, nine privately-owned), it has no daily paper. Radio broadcasting remains a dominant news source in the country with 26 stations, two of which are state-owned. Online news has relatively few constraints compared to other media, but given the lack of infrastructure and the cost of connectivity in Lesotho, Internet access is limited, meaning online news has correspondingly minimal reach.

Although most of the media sources in Lesotho are privately owned, the economic situation in the country means they are less independent than they may appear. As newspapers and radio continue to depend on revenue from state companies to operate, they are gradually losing independence.

The country is also limiting freedom of speech more directly through new legislation that is strongly opposed by freedom of expression and media freedoms groups. The Communications (Subscriber Identity Module and Mobile Device Registration) Regulations, No. 141 of 2021, which came into effect in 2022, require that anyone living in or entering Lesotho register all of their mobile devices that use a SIM card, the SIM card itself, their physical address, and their biometrics with the Lesotho Communications Authority (LCA). The Regulations provide for the creation of a central database to store the collected information, and they force telecommunications service providers to transfer any information they capture on their customers to the database. They also permit the LCA to hand over private communications between citizens to security agencies without consent or court approval.

Section 14(1) of the Constitution of the Kingdom of Lesotho holds that everyone is entitled to and shall not be hindered in the enjoyment of his “freedom of expression, including freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information without interference(whether the communication to be public generally or to any person or class of persons) and freedom from interference with his correspondence”. There is a caveat in Section 14(2) which limits these freedoms if such limitations as per section 14(2)(a) are “in the interests of defence, public safety, public order, public morality or public health;”. These rights are therefore subject to those limitations as decided by the ruling party in Lesotho.

Control of information to the public is regulated very strictly, and being an economically depressed country, the population is dependent largely on official news outlets to keep them informed of current affairs pertinent to the populace.

With no stand-alone whistleblower protection law in place, Lesotho fails to meet minimum international standards despite being a signatory to various international and multinational conventions.

Weaknesses and Needed Reforms

A major weakness in Lesotho’s media legal framework is that there is no legal right to access information, and it is difficult for the media to access official information. Without that access, the media cannot effectively keep an eye on the government and other institutions in order to help stem corruption. Although a Right and Access to Information Bill was drafted in 2000, it has yet to progress through Parliament and has not been implemented despite endorsement from media rights groups.

In 2024, the government sought to reinstate the Computer Crimes and Cyber Security Bill, a controversial bill that was criticised by both the media and civil society organisations for being overly broad and reminiscent of the previous criminal defamation laws that were declared unconstitutional in 2018. Critics said the bill granted government agencies unfettered enforcement powers without adequate safeguards for the protection of freedom of expression. The Bill was tabled in the National Assembly on 22 May 2024 by the Minister of Communications, and it stands referred to the Prime Minister’s Ministries and Departments Portfolio Committee. The Committee undertook public consultations from July to August 2024, but they have not yet made a report to the House.

For any whistleblower framework to be effective, Lesotho’s laws restricting freedom of expression must be reformed, and stronger constitutional jurisprudence must emerge to uphold the rights to free speech and association. Building a legal culture that supports openness and accountability is essential if the country is to align with internationally recognised standards.

Compliance with International Standards

Although it has signed on to several international and multinational conventions, Lesotho does not comply with international standards, given its lack of any national whistleblower laws or protections.

Knowledge, Support, and Action Centres

Ombudsman of the Kingdom of Lesotho

The role of Ombudsman institutions is to protect the people against violation of rights, abuse of powers, unfair decisions and maladministration. They play an increasingly important role in improving public administration while making the government’s actions more open and its administration more accountable to the public.

Address: 6th Moposo House, 2nd Floor, P.O.Box 12610, 100 Maseru, Lesotho
Tel: +266 22 31 64 25
Fax: +266 22 31 06 72
Website: www.ombudsman.org.ls
E-Mail: info@ombudsman.org.ls

Revenue Service Lesotho

Revenue Services Lesotho (RSL) is an operationally autonomous body that was established in 2003 to collect specific revenues on behalf of the Government and to administer and enforce laws tied to those revenues. A key element of RSL’s mission is fighting corruption. Although RSL operates outside the framework of the Civil Service, it is fully accountable to the Parliament.

Address: Ground Floor, Finance House Building, Government Office Complex, Kingsway Road, Maseru
Tel: +266 22 313796/ Toll Free:8002 2009
Whatsapp Messaging: +266 6221 0090
Fax: +226 22312091
Website: https://www.rsl.org.ls/
Email: info@rsl.org.ls

Directorate on Corruption and Economic Offences (DCEO)

The Directorate on Corruption and Economic Offences (DCEO) was established in terms of Section 3 of the prevention of Corruption and Economic Offences Act No. 5 of 1999 as amended by Act No. 8 of 2006. The Core business of the Directorate is to prevent and fight corruption and economic crime in both the public sector and the private sector.

Address: Former British High Commissioner’s Building, Linare Road, Opposite National Manpower Development Secretariat (NMDS), P.O. Box 16060, Maseru 100, Lesotho
Tel: +266 2221 9200
Fax: +266 2231 4097/+266 2231 4096
Website: www.dceo.org.ls
Web form: https://www.dceo.org.ls/report-corrupt-activities/
E-mail: info@dceo.org.ls