Kamoli v Commissioner of Lesotho Correctional Services and Others (CIV/APN 251 of 2021) [2021] LSHC 90 (5 August 2021)

REPORTABLE IN THE HIGH COURT OF LESOTHO LESOTHO Held at Maseru In the matter between: CIV/APN/251/2021 TLALI KENNEDY KAMOLI APPLICANT And COMMISSIONER OF LESOTHO CORRECTIONAL SERVICES 1st RESPONDENT THE DIRECTOR OF PUBLIC PROSECUTIONS 2nd RESPONDENT THE ATTORNEY GENERAL 3rd RESPONDENT Neutral Citation: Kamoli v. Commissioner of Lesotho Correctional Services And Others (CIV/APN/251/2021) Civ 90 LSHC ( 5 August 2021) CORAM: HEARD: DELIVERED: 5 AUGUST 2021 S. P. SAKOANE CJ 23 JULY 2021 SUMMARY Human rights of prisoners - right of prisoners to attend funerals - whether an awaiting trial prisoner should be granted leave to attend a funeral - whether correctional authorities conferred with discretion to grant such leave - whether such a prisoner should be escorted to the funeral in chains and handcuffs - issues to be resolved by reference to human rights values and international minimum standards on the treatment of prisoners - Constitution 1993, sections 12 (2) and 8; Lesotho Correctional Services Act 2016, sections 40 and 44; Prison Rules, 1957; United Nations Standard Minimum Rules for the Treatment of Prisoners, 1957. ANNOTATIONS: CITED CASES: LESOTHO: Commander of the Lesotho Defence Force And Others v. Rantuba And Others LAC (1995-99) 687 CANADA: R V. Oakes [1986] 1 S. C. R. 103 Sherman Estate v. Donovan 2021 SCC 25 (CanLII) INDIA: Khedat Mazdoor Chetna Sangth v. State of M. P. 1994 SCC (6) 260 Prem Shankar Shukla v. Delhi Administration (1980)3 S. C. R 855 NAMIBIA: Namunjepo And Others v. Commanding Officer, Windhoek Prison And Another 2000 (6)BCLR 671 (NmS) SOUTH AFRICA: Elrich v. Minister of Correctional Services and another 2009 (1) SACR 588 (E) Minister of Justice v. Hofmeyr 1993 (3) SA 131 (A) ZIMBABWE: Blanchard and Others v. Minister of Justice, Legal And Parliamentary Affairs and Others 1999 (10) BCLR 1169 (ZS) UNITED NATIONS HUMAN RIGTS COMMITTEE: Fongum Gorji - Dinka v. Cameron, Communication No. 1134/2002 (17 March 2005) STATUTES: Constitution of Lesotho, 1993 Lesotho Correctional Services Act No. 3 of 2016 Prison Rules, 1957 Public Health (COVID-19) (Risk Determination and Mitigation Measures) (No. 7) Regulations, 2021 United Nations Standard Minimum Rules for the Treatment of Prisoners, 1957 JOURNALS: South African Law Journal (1979) 96 JUDGMENT “As soon as a person is dead he takes his place among the family gods. His remains are deposited in the cattle-pen. An ox is immolated over his grave: this is the first oblation made to the new divinity, and at the same time an act of intercession in his favour, serving to ensure his happy reception in the subterranean regions. All those present aid in sprinkling the grave, and repeat the following prayer: ‘Repose in peace with the gods; give us tranquil nights. I. INTRODUCTION [1] This application raises the question: “What recourse does an awaiting-trial prisoner have after receiving the sad news of the passing of a blood­ relative? ” The applicant, who is awaiting the conclusion of his trial, received the sad news of the passing of his son. He applied for leave to attend the funeral and the Commissioner of Correctional Services disavowed any powers to assist and referred him to courts of law. But when he comes to the courts of law, the Commissioner resists judicial assistance claiming all manner of problems should the court intervene. [2] After reading the papers, hearing oral argument and read written submissions by counsel on the eve of the funeral, I granted the following order, intimating that reasons would follow: * Eugene Casalis (1997) The Basutos (Morija: Morija Museum & Archives) p. 250 “1. The applicant in the custody of the Lesotho Correctional Services, is granted leave to attend the funeral of his son on Saturday 24th July 2021 at Ha Leqele in the district of Maseru from 07.30hrs - 10.30hrs. 2. 3. 4. 5. The Commissioner of Lesotho Correctional Services is hereby directed to facilitate the order and is hereby directed to give appropriate orders to the correctional officers to escort applicant to the funeral of his son. The Lesotho Correctional Service authority shall provide proper escort in order to ensure safety and security of the applicant by imposing reasonably suitable conditions to that effect. The applicant shall abide by the conditions to be imposed by the authorities. Applicant to be returned to the Lesotho Correctional Service soon thereafter without fail. 6. Costs follow the event. ” What follows hereinafter are the reasons for the order. II. MERITS The applicant’s case [4] The applicant is an awaiting trial inmate as defined under Rule 94 (1) of the Prisons Rules, 1957. He has been in custody for the last five years and his trial is ongoing. [5] On 12 July his son passed on and he got the sad news a day or two later. He met with his counsel on 15 July who advised him to seek leave from the correctional officers to attend the funeral. The response he got from them was that he should “request such permission from the court”. He met with counsel again on 19 July and informed him of the response. Hence the application. [6] The applicant contends that he is not a flight or security risk. He also contends that the funeral will be conducted in conformity with the COVID 19 regulations for two hours with the attendance of the number of people permitted therein, [7] The applicant contends further that he has a right “in terms of the law to bury my son” and that “the right to attend burial of son is not curtailed by my being an accused in the absence of another factor that weighs heavily against my being granted” leave to attend the funeral. [8] He rounds up his case by saying that prisoners who are serving sentences and awaiting trial are granted permission, with or without a court order, to attend hospitals, see private doctors for medical reasons as well as go to financial institutions and conduct other business at the discretion of the Correctional Service authorities. The respondents’ answer [9] The Commissioner of the Lesotho Correctional Services, joined by the Director of Public Prosecutions, opposed the case application on the following grounds: 9. 1 That the applicant is facing charges of treason and murder for which he has been denied bail. Denial of bail outweighs grant of leave to attend his son’s funeral. 9. 2 The “applicant is not eligible for temporary release because, his release by its nature would undermine the interests of national security and public safety. ” 9. 3 It is “in the interests of justice that this court should not temporarily release applicant for the prevention of disorder and crime which might arise during the funeral based on the fact that it would not be known which people would attend and for which objective. ” 9. 4 Attendance at the funeral constitutes a threat to security because the “applicant’s incarceration has caused a faction amongst people as some love him whilst majority hate him”. 9. 5 The court should not grant leave to attend the funeral “for the prevention of disorder or crime, for the protection of the rights and freedom of others who would be attending the funeral”. 9. 6 The Commissioner has “no power to temporarily release or allow applicant an opportunity to bury applicant’s son, more so, because applicant is not a convict (sic) prisoner who is eligible or has met all requirements to be allowed such an opportunity”. 9. 7 “It is impossible for the institution to assist the applicant to attend such funeral because applicant would have to be escorted at (sic) the funeral hands cuffed and ankle cuffed” thereby “exposing applicant to the public” and “his family members and people who love him would not want to see him in cuffs. This in itself would certainly trigger disorder and crimes. ” 9. 8 Escorting the applicant would necessitate roping in soldiers to ensure his safety and that of the public. This would lead to violation of the COVID 19 protocols on the number of persons allowed to attend the funeral and risk exposure of an inmate to the virus which is a health hazard to other inmates. 9. 9 Whereas permission or leave is granted on a discretionary basis to inmates to attend medical facilities and other places to gather food or wood, such permission is granted only to inmates who are already serving and not to untried prisoners and those on remand, III. ANALYSIS [10] The applicant seeks leave to be escorted to his home at Ha Leqele in Maseru to attend the funeral of his son for two hours (8.00am-10.00am) and return back to the Maseru Correctional facility immediately thereafter. His contentions that he does not pose a security risk and that there is. enough security personnel in place to provide him with security to and from the funeral are disputed on the tangential reasoning that he does not qualify to be granted leave because of his status of being an untried prisoner and that the interests of national security, prevention of crime and disorder and COVID 19 concerns all militate against granting him the leave he seeks. [11] It is common cause that the applicant approached the Commissioner to be granted leave to attend the funeral under escort and the Commissioner said he does not have any such powers. He advised the applicant to come to court. I shall return to the issue whether the Commissioner was right in saying that he was bereft of any discretionary powers to grant the applicant’s request because of his status as an awaiting trial prisoner. Nature of applicant’s request [12] What the applicant seeks is permission to attend the funeral so as to exercise his right and duty to bury his son. His is not a request for leave of absence under section 44 of the Correctional Service Act No. 3 of 2016 as he is not a serving inmate nor is his request a plea for liberation from remand custody pending conclusion of trial. It follows that the opposition to the request of the applicant on the ground that he must apply for bail misconceives his request. [13] Counsel are ad idem that there is nothing expressis verbis the provisions of the Correctional Service Act, 2016 on the request either as a right or privilege to prisoners. Mr. Molati, for the applicant, submits that the applicable canon of interpretation is that what the law does not prohibit it allows. He contends that the Commissioner retains a residual discretion to grant permission to attend a funeral. Mr. Moshoeshoe, for the respondents, says the opposite is surely the case, that is, what is not expressly mentioned or stated is impermissible: expressum facit cessare tacitum (express enactment shuts the door to further implication). Thus, there is no residual discretion to grant leave to attend a funeral. [14] In my carefully considered opinion, the matter falls to be resolved on the broader and fertile ground of rights and freedoms and not the narrower field of principles of statutory construction. The real enquiry is whether, having regard to the values of the Constitution, the common law, custom, the object of the Act and the Prison Rules, the Commissioner does not have a discretionary power to grant leave to an awaiting trial prisoner to attend the funeral of a family member. Should the applicant mourn alone in the confines of a correctional facility without sight of the coffin, body and grave of his son? Should he not be allowed to pay his last respects? In my respectful view, what the Basotho are won’t say “Mohau o teng empa thuso ha eeo” (Mercy is there and not help) is cold comfort that should not stand in the way of interpreting the law in accordance with the evolving standards of human decency so that justice is done to the applicant’s request. [15] In consequence thereof, I consider that the answer must come from the reading of the Correctional Services Act and Prison Rules interpreted in tandem with first principles of the common law, custom and practice, as well as the Constitution and the international minimum standards for treatment of prisoners. Constitutional Rights And Freedoms [16] An untried prisoner is innocent until a court pronounces otherwise. Hence section 12 (2) of the Constitution guarantees and protects his innocence thus: “(2) Every person who is charged with a criminal offence - (a) shall be presumed to be innocent until he is proved or has pleaded guilty; ” [17] The purpose of this constitutional right is explained by Dickson CJ in the Canadian case of R v. Oakes1 thus: ‘The presumption of innocence protects the fundamental liberty and human dignity of any and every person accused by the State of criminal conduct. An individual charged with a criminal offence faces grave social and personal consequences, including potential loss of physical liberty, subjection to social stigma and ostracism from the community, as well as other social, psychological and economic harms. In light of the gravity of these consequences, the presumption of innocence is crucial. It ensures that, until the State proves an accused’s guilt beyond reasonable doubt, he or she is innocent. This is essential in a society committed to fairness and social justice. The presumption of innocence confirms our faith in humankind; it reflects our belief that individuals are decent and law-abiding members of the community until proven otherwise. ” Freedom from inhuman and degrading treatment [18] Tied to the right of presumption of innocence is the duty of correctional authorities to look after the welfare of prisoners consistent with their dignity and humanity. This duty arises from the constitutional freedom from inhuman or degrading treatment protected by section 8 (1) to be that: 1 [1986]1 S. C. R. 103 para 29 “(1) No person shall be subjected to torture or to inhuman or degrading punishment or other treatment. ” Section 40 of the Lesotho Correctional Services Act, 2016 echoes the same duty. This puts beyond all doubt the commitment of Lesotho to treat all prisoners with due respect to their dignity and humanity (i. e. Botho). [19] Freedom from torture and inhuman or degrading treatment reposes in the correctional authorities the power to provide conditions and environments which are conducive for the humanity and the dignity of prisoners. Prisoners must not be ill-treated or tortured in any shape or form - psychological torture not excepted. Prisoners awaiting trial are in correctional institutions not to serve any sentence but to undergo trials. Convicted prisoners are not there to be punished but to serve their sentences. This is the constitutional and statutory context within which the correctional authorities must administer correctional facilities and treat prisoners. It entails the obligation of the correctional authorities to consider reasonable requests of prisoners and to accommodate them with due regard to the discipline and security concerns of the correctional institutions. Restraints on freedom of movement [20] The internationally accepted human rights principle is that imprisonment does not take away the basic rights of prisoners but merely restricts them. In Commander Of The Lesotho Defence Force And Others v. Rantuba And Others2, the Court of Appeal accepted the articulation of this principle in Minister of Justice v. Hofmeyr3: “The Innes dictum serves to negate the parsimonious and misconceived notion that, upon his admission to a gaol, a prisoner is stripped, as it were, of all his personal rights; and that thereafter, and for so long as his detention lasts, he is able to assert only those rights for which specific provision may be found in the legislation relating to prisons, whether in the form of statues or regulations. The Innes dictum is that the extent and content of a prisoner’s rights are to be determined by reference, not only to the relevant legislation, but also by reference to his inviolable common-law rights. It is self-evident that the extent to which imprisonment will make ■ necessary inroads upon a particular prisoner’s personal rights will depend upon the reason for his detention and the legislation applicable to him. Making full allowance therefore, it seems to me nevertheless that, although the Whittaker case was concerned with the plight of awaiting-trial prisoners, the Innes dictum is one of general application. As a matter of logic and legal principle I am unable to see why it should not apply to every prisoner in a gaol irrespective of the reason for his detention. As to principle, subsequent to the Goldberg case the following general proposition was stated by Jansen JA in delivering the judgment of this court in Mandela v Minister of Prisons 1983 (1) SA 938 (A) (at 957E-F): ‘on principle a basic right must survive incarceration except insofar as it is attenuated by legislation, either expressly or by necessary implication, and the necessary consequences of incarceration. ’ For these reasons I would respectfully express my agreement with the general approach reflected in the residuum principle enunciated by Corbett JA in the Goldberg case. ” 2 LAC (1995-99) 687 at 691I-692F 3 1993 (3) SA 131 (A) 141C-D [21] This human rights principle now occupies a place of pride in the constitutional scheme of things. As held by the High Court of South Africa in Elrich v. Minister of Correctional Services and another : 4 “ [7] The common law may not be as prominent now as it was in 1912, 1979 or 1993 for the protection of fundamental rights and it was, of course, subject to legislative override, as a result of parliamentary sovereignty being a central tenet of the constitutional order at the time. Now, in an era of democratic constitutionalism, in which fundamental rights are justiciable and in which they may only be limited by laws of general application ‘that are reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom’, the residuum principle has stronger protection than before. There can be no doubt that it is in harmony with the Constitution’s values. ” I cannot agree more. [22] The freedom of movement of prisoners is, therefore, circumscribed, restricted and not obliterated. In Blanchard and Others v. Minister of Justice, Legal And Parliamentary Affairs and Others5, the Supreme Court of Zimbabwe propounded the following principles: (1) Although persons in custody do not possess the full range of freedoms of unincarcerated individuals, any restraints imposed upon them must be circumscribed and absolutely necessary. They must be measured against the state’s sole objective of bringing the prisoner to trial, and be judged against a standard of basic humanity towards persons innocent in the eyes of the law rather than against abstract penological standards. Punishment, deterrence and retribution are not compatible with the presumption of innocence. 4 2009 (1) 588 (E) 5 1999 (10) BCLR 1169 (ZS) (2) (3) (4) Although there may be special circumstances in which it is permissible to subject a prisoner awaiting trial to more severe treatment than other such prisoners, the onus is on the prison authorities to justify such action, Stripping prisoners and shackling them in leg irons is manifestly inhuman. Any recourse by prison authorities to the use of leg irons and handcuffs must be condemned except where it is for the prevention of escape during transportation or in order to restrain violent behaviour or in the absence of other effective methods, the prisoner would endanger his own or other person’s safety or significantly damage property. Prisoners awaiting trial are presumed innocent, and should not be forced to wear prison clothing; this imparts the appearance of guilt. It is debasing and humiliating and constitutes treatment, which is calculated to, or in all probability will, adversely affect the status of the prisoner. [23] In similar vein, the Supreme Court of Namibia held in Namunjepo and Others v. Commanding Officer, Windhoek Prison and Another6, as follows: “Whatever the circumstances, the practice to use chains and leg irons on human beings is a humiliating experience which reduces the person placed in irons to the level of a hobbled animal whose mobility is limited so that it cannot stray. It is furthermore still a strong reminder of days gone by when people of this continent were carted away in bondage to be sold like chattels. To be continuously in chains or leg-irons and not be able to properly clean oneself and the clothes one is wearing sets one apart from other fellow human beings and is in itself a humiliating and undignified experience. To sanction the chaining of a prisoner merely because he had escaped constitutes in my opinion punishment. I am therefore of the opinion that the placing of a prisoner in leg irons or chains is an impermissible invasion of article 8 (1) and contrary to article 8 (2) (b) of the Constitution as it least constitutes degrading treatment. The court should therefore declare such practice unconstitutional. ” 6 2000 (6) BCLR 671 (MnS) 683 D-E and H-I [24] In Prem Shankar Shukla v. Delhi Administration7 the Supreme Court of India held that untried prisoners should only be handcuffed where there is sufficient cause to do so and such cause must be recorded to avoid arbitrariness. In its words the court said: “Handcuffing is prima facie inhuman and, therefore, unreasonable, is over-harsh and at the first flush, arbitrary. Absent fair procedure and objective monitoring, to inflict ‘irons’ is to resort to zoological strategies repugnant to Art. 21. Thus, we must critically examine the justification offered by the State for this mode of restraint. Surely, the competing claims of securing the prisoner from fleeing and protecting his personality from barbarity have to be harmonized. To prevent the escape of an under-trial is in public interest, reasonable, just and cannot, by itself, be castigated. But to bind a man hand-and-foot, fetter his limbs with hoops of steel, shuffle him along in the streets and stand him for hours in the courts is to torture him, defile his dignity, vulgarise society and foul the soul of our constitutional culture. Where then do we draw the humane line and how far do the rules err in print and praxis? Insurance against escape does not compulsorily require hand-cuffing. There are other measures whereby an escort can keep safe custody of a detenu without the indignity and cruelty implicit in hand-cuffs or other iron contraptions. Indeed, binding together either the hands or the feet or both has not merely a preventive impact, but also a punitive hurtfulness. Manacles are mayhem on the human person and inflict humiliation on the bearer. The Encyclopaedia Britannica, Vol. II (1973 Edn. ) at p. 53 states ‘handcuffs and fetters are instruments for securing the hands or feet of prisoners under arrest, or as a means of punishment. ’ The three components of ‘irons’ forced on the human person must be distinctly understood. Firstly, to handcuff is to hoop harshly. Further, to handcuff is to punish humiliatingly and to vulgarise the viewers also. Iron straps are insult and pain writ large, animalising victim and keeper. Since there are other ways of ensuring security, it can be laid down as a rule that handcuffs or other fetters shall not be forced on the person of an under trial prisoner ordinarily. The latest police instructions produced before us hearteningly reflect this view. We lay down as necessarily implicit in Arts. 14 and 198 that when there is no compulsive need to fetter a person’s limbs, it is sadistic, capricious, despotic and demoralizing to humble a man by manacling him. Such arbitrary conduct surely slaps Art. 14 on the face. The minimal freedom of movement which even a detainee is entitled to under Art. 19 (see Sunil 7 (1980) 3 S. C. R 855 at 872E-873E 8 Sections 19 and 7 respectively in our Constitution Batra, supra) cannot be cut down cruelly by application of handcuffs or other hoops. It will be unreasonable so to do unless the State is able to make out that no other practical way of forbidding escape is available, the prisoner being so dangerous and desperate and the circumstance so hostile to safe-keeping. ” [25] In Khedat Mazdoor Chetna Sangth v. State of M. P. & Ors9, the same Court held that a person remanded by a judicial order comes within the custody of the court. His movement between the prison and the court under escort is by judicial orders of the court only. If extreme circumstances necessitate the escorts to bind him in fetters, the reasons for doing so must be recorded in writing and intimated to the court so that it is able to issue necessary directions and consider whether manacling is necessary and has to be approved or disapproved in the particular circumstances. International minimum standards on treatment of prisoners [26] In Fongum Gorji-Dinka v. Cameroon10, the United Nations Human Rights Committee, which hears complaints of human rights violations by States party to the Optional Protocol to the International Covenant on. Civil and Political Rights (1966), said the following: “5. 2 With regard to conditions of detention, the Committee takes note of the author’s uncontested allegation that he was kept in a wet and dirty cell without a bed, table or any sanitary facilities. It reiterates that persons deprived of their liberty may not be subjected to any hardship or constraint other than that resulting from the deprivation of liberty and that they must be treated in 9 1994 SCC (6) 260 10 Communication No. l 134/2002 (17 March 2005) accordance with, inter alia, the Standard Minimum Rules for the Treatment of Prisoners (1957):... ” [27] Rule 44 of the UN Standard Minimum Rules reads thus apropos death or illness of a prisoners’ relatives: “(2) A prisoner shall be informed at once of the death or serious illness of any near relative. In case of the critical illness of a near relative, the prisoner should be authorized, whenever circumstances allow, to go to his bedside either under escort or alone. ” [28] I searched in vain for this minimum standard in our Prisons Rule, 1957. A closer reading of our Prison Rules, 1957 and the UN Standard Minimum Rules makes an unfavourable comparison. This is despite the fact that the two sets of rules were adopted in the same year. Whereas an independent, democratic Lesotho cannot be blamed entirely for the discrepancies for operationalizing the Prison Rules made by the colonial master, she must be blamed for failing to bring them in line with the minimum threshold set by the UN Standard Minimum Rules. [29] Our Prison Rules are also deafeningly silent on the use of instruments of restraint such as handcuffs, irons and straight-jackets, chains etc. This is despite UN Standard Minimum Rule 33 which provides that: “Instruments of restraint, such as handcuffs, chains, irons and straight­ jackets, shall never be applied as a punishment. Furthermore, chains or irons shall not be used as restraints. Other instruments of restraint shall not be used except in the following circumstances: (a) As a precaution against escape during a transfer, provided that they shall be removed when the prisoner appears before a judicial or administrative authority; (b) On medical grounds by direction of the medial officer; (c) By order of the director, if other methods of control fail, in order to prevent a prisoner from injuring himself or others or from damaging property; in such instances the director shall at once consult the medical officer and report to the higher administrative authority. ” Does the Commissioner have power to grant leave? [30] The Commissioner contends that the only power he has is to grant leave to convicted prisoners to attend hospitals, go to banks and travel to other places to gather food and wood. He does not have such power in relation to untried prisoners save that of escorting them to health care centres and courts. A perusal of the Prison Rules reveals that they allow visits in prison by medical doctors. Rule 100, which is the relevant rule does not say that the prisoner can visit the doctor at his or her consulting rooms. It reads as follows: “ 100. If an untried prisoner wishes to be attended by a registered medical practitioner or dentist, and is able and willing to pay all expenses involved, the Director may, if he is satisfied that there is reasonable ground for the application, allow him to be visited and treated by such practitioner or dentist in consultation with the medical officer. ” [31] The Commissioner suggests then that he retains the power to allow a prisoner to attend the consulting rooms of a doctor or hospital outside a correctional facility. This is perfectly sensible in order to protect the prisoner’s right to health and, by extension, the right to life. By parity of reasoning, the Commissioner must retain a residual power to consider a reasonable request for leave by an awaiting trial prisoner in bereavement to pay last respects to a close relative who under customary law such a prisoner has the right and bears the duty to bury. [32] If convicted prisoners can attend hospital treatment, fetch wood, search for food and conduct banking business under escort, I do find any good reason why an awaiting trial prisoner should not be granted leave or permission to attend sick relatives in hospital and funerals under escort. Subject to demonstrable security concerns or flight risk, the freedom of movement of untried prisoners must be subjected to a more liberal regime than those of convicted prisoners. The fact that an awaiting trial prisoner has been denied bail or has not applied for bail is an irrelevant consideration when considering a request for leave to attend a funeral because attending a funeral under escort is not a release from prison. The fact that a prisoner is escorted to wherever it is necessary for him to go speaks to him moving there under the custody and control of correctional authorities. I do not accept that the Commissioner does not have a residual discretion to consider a request by an awaiting trial prisoner who is culturally bound to attend a funeral and perform burial duties. [33] In my judgment, Lesotho must accord inmates the minimum treatment provided by Rules 33 and 44 of the UN Standard Minimum Rules for the Treatment of Prisoners on matters of death and illness of relatives and the use of instruments of restraint. These minimum standards for treating inmates with respect of their humanity and dignity by permitting them to attend funerals of close relatives finds constitutional anchor in the values of the Constitution. [34] During oral argument, Mr. Moshoeshoe conceded that a limited order could be made that the applicant attends the funeral under escort and only be allowed to view the corpse but not stay throughout the funeral proceedings to perform the customary burial rites and rituals. I found this concession disingenuous and makes a mockery of the duty to perform burial rituals and rites under Basotho custom and culture. [35] The basis for the concession was that funerals are conducted under COVID 19 regulations which disallow large assemblies of mourners. But the Public Health (COVID 19) Risk Determination and Mitigation Measures (No. 7) Regulations 2021 do not disallow performance of burial rites and rituals. They regulate the number of mourners and duration of funerals. Under Level 1 (Blue), the number of mourners at a funeral is 100. There is no viewing of the corpse. Under Level 2 (Purple), which is where the Kingdom was as at the hearing of this application, the number of mourners is 100. There is no viewing of the corpse at home. Wearing of face masks is mandatory all the time. The duration of funerals is a maximum two hours. [36] No evidence was placed before me that in casu, the funeral would not be conducted in accordance with the COVID 19 Regulations. The respondents merely speculated that this might not be so because the applicant’s escort would, of necessity, have to include a large contingent of soldiers for the applicant’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 war zone. [37] Nothing was placed before me to show that escorting the applicant with his hands and ankles cuffed would cause anger from family members and mourners who loved him, thereby “exposes escorting officers to some attacks and threats which would certainly erode national security”. What is also telling against the respondents, is that they did not pointedly say the applicant posed a security threat or was a flight risk warranting the use of instruments of restraint. [38] Although direct evidence of threats to personal safety, national security and risk of flight is not necessarily required as such can be objectively discerned on the basis of logical inferences, such inferential reasoning still needs to be grounded on proven facts. Otherwise, the inferential reasoning would be a licence to engage in impermissible speculation. Thus, the respondents had to prove not just the probability of the occurrence of feared threats but also their gravity in order to pass the threshold of the threats not being negligible, fanciful or speculative. Mere assertions of risks to personal safety, national security and flight are, therefore, insufficient. 11 [39] Absent any proof of these threats, the contentions of the respondents are in torrerem (meant to intimidate or frighten). To manacle the applicant in the manner suggested would be a violation of the applicant’s right to dignity and freedom from inhuman and degrading treatment contrary to section 40 of the Lesotho Correctional Service Act, 2016 read with section 8 of the Constitution. IV. CONCLUSION [40] Parliament has clothed the Commissioner with the overall administration of correctional facilities. In this regard, the Correctional Services Act, 11 Sherman Estate v. Donovan 2021 SCC 25 (CanLII) para [97] 2016 has, as one of its objects, the securing of “humane treatment of offenders in accordance with universally acceptable human rights standards”. This object enjoins the correctional authorities to follow and apply the UN Standard Minimum Rules for the Treatment of Prisoners, 1957 and other international protocols to enrich the regime of protection of prisoners. [41] The section 44 power to grant leave of absence to inmates who are serving sentences is an animation for grant of leave to presumptively innocent prisoners whom death has visited their families. The Commissioner is enjoined by the values of the presumption of innocence, dignity and humanity to consider, in good faith, a request for leave to attend a funeral and to provide the necessarily appropriate escort. For “Man’s inhumanity to man makes countless thousands mourn”. 12 [42] The applicant came to court because the Commissioner had washed his hands akin to Pontius Pilate . After the applicant had witnessed this washing of hands clean and heeded his advice to seek a judicial remedy, the Commissioner somersaulted and raised all manner of objections. As it 12 Rudolf, Harold G. “Man’s Humanity To Man Makes Countless Mourn! ” Do Prisoners Have Rights? ” South African Law Journal (1979) 96 640 13 Holy Bible, Matthew Chapter 27 Verse 24 transpires from the papers, the Commissioner hid from the applicant the other reasons behind his conduct. [43] Because the Commissioner did not make a decision but washed his hands of the matter, what was left for the applicant was to seek the assistance of this court. But it was too late in the day to refer the matter back to the Commissioner to exercise his discretion in the matter. The applicant incurred costs caused by the respondents’ vigorous opposition to the very application which the Commissioner had advised he make. Hence the court obliged the applicant and made the order in paragraph [2] of this judgment. S. P. SAKOANE CHIEF JUSTICE For the Applicant: L. A. Molati and M. S. Motseki For the Respondents: L. P. Moshoeshoe 25