In response to a highly critical report by the Lesotho Ombudsman, the International Commission of Jurists (ICJ) and the Lesotho National Federation of Organizations of the Disabled (LNFOD) is calling on the responsible Lesotho authorities to take concrete measures to end the discriminatory detention and inhumane treatment of persons with intellectual and psychosocial disabilities in the Mohlomi Mental Hospital.
“LNFOD has repeatedly raised concerns about the continued institutionalization of persons with disabilities in undignified and inhumane conditions at Mohlomi Hospital. This violates their constitutional rights and Lesotho’s obligations in terms of the Convention on the Rights of Persons with Disabilities (CRPD)”, said Nkhasi Sefuthi, LNFOD’s executive director.
In March 2023, the Office of the Ombudsman in Lesotho conducted inspections of the Mohlomi Mental Hospital in Maseru, Lesotho’s only dedicated psychiatric hospital. The Ombudsman’s report, published in October 2023, reveals the appalling conditions of and practices of involuntary confinement and treatment of persons with intellectual and psychosocial disabilities in Lesotho. The findings include:
- Persons with intellectual and psychosocial disabilities are subjected to detention for prolonged periods, sometimes up to 40 years, without any review of their medical conditions;
- The institution has had no dedicated psychiatrists on staff for the last seven years;
- Some units in Mohlomi are overcrowded, inhabited by double the maximum number prescribed under international standards;
- The institution has dilapidated buildings with insufficient provision of bedding, clothing, and food;
- Safety and security measures for both patients and staff are inadequate.
These conditions constitute violations of the rights of persons with disabilities who are held in the institution, guaranteed under Lesotho’s Constitution, the Persons with Disabilities Equity Act and international law, including the Convention on the Rights of Persons with Disabilities,.
“Many persons detained in Mohlomi are detained under discriminatory laws that result in the effective indefinite detention of persons with disabilities because of their disabilities”, said Tim Fish Hodgson, ICJ’s Senior Legal Adviser.
“They are detained, for prolonged periods, because courts determine that they are ‘insane’ or ‘mentally incapacitated’ and are typically provided with no support prior to this declaration. They never participate in a fair hearing nor are they ever found guilty of any crime.”, he added.
The ICJ and LNFOD urge Lesotho authorities to implement the Ombudman’s recommendations. In addition, authorities should take immediate measures including:
- Improving the conditions at Mohlomi Hospital in line with international law and standards;
- Adoption of a moratorium on forced placements in Mohlomi Hospital;
- Providing all persons requiring mental health services with healthcare based on free and informed consent;
- In consultation with persons with disabilities and all concerned stakeholders, adopting an action plan for the implementation of the CRPD Committee’s Guidelines on deinstitutionalization, including in emergencies (2022);
- Revision of the Criminal Procedure Code so as to end discriminatory and involuntary institutionalization at the King’s pleasure on the basis of disability status;
- Ensuring the full and effective participation of persons with disabilities, including in particular persons with intellectual and psychosocial disabilities, in the formulation of legal and policy measures relating to institutionalization, access to justice and mental health.
Background
Lesotho adopted into law the Persons with Disability Equity Act in 2021, guaranteeing protections for the rights of persons with disabilities, including the right to live independently and the right to access justice on an equal basis with others. It also provides that any detention of persons with disabilities accused or charged with a criminal offence should be in a facility that offers the necessary accommodation and support. The Chief Justice of Lesotho has recently adopted the Disability and Equity (Procedure) Rules, which aim to ensure effective access to judicial processes for persons with disabilities.
Despite the introduction of these laws, section 172 of Lesotho’s Criminal Procedure and Evidence Act No.9 of 1981 still permits the indefinite detention of persons with intellectual or psychosocial disabilities who accused of or charged with offences, if they are deemed to be unfit to stand trial. These individuals are institutionalized in a prison (psychiatric hospital) until they are considered to be eligible for pardon by the King. As a result of this procedure, some individuals at the Moholomi Mental Hospital have been subjected to a prolonged period of incarceration.
Institutionalization refers to confining persons with disabilities to places where they live together and are segregated from their communities. All forms of institutionalization should be abolished in accordance with the CRPD as interpreted in the Guidelines on deinstitutionalization adopted by the Committee on the Rights of Persons with Disabilities. Article 14 of the CRPD prohibits the detention of persons with disabilities on the basis of impairment.
According to the Guidelines on the right to liberty and security of persons with disabilities adopted by the Committee on the Rights of Persons with Disabilities, institutionalization based on actual or perceived impairment or other factors related to disability amounts to arbitrary deprivation of liberty. The Committee has also stated, in its General Comment No.5, that institutionalization violates various rights of persons with disabilities guaranteed under the CRPD, including the right to equality and non-discrimination (Article 5), the right to equal recognition before the law (including legal capacity) of persons with disability (Article 12), the right to access to justice (Article 13), and the right to live independently and be included in the community (Article 19).
In its Guidelines on Deinstitutionalization, including in emergencies, the Committee outlines measures to be taken by States to end institutionalization. These include:
- The repeal of laws and procedures that allow for the declaration of incapacity of persons with disabilities to participate in legal proceedings and permit deprivation of liberty based on disability;
- The adoption of legal and policy frameworks that enable persons with disabilities to live independently and be included in the community;
- The adoption of a comprehensive deinstitutionalization strategy and plan of action;
- To ensure access to individualized support systems and inclusive community care services; and
- Facilitation of participation of persons with disabilities in deinstitutionalization processes.
Resources
Convention on the Rights of Persons with Disabilities
Guidelines on the right to liberty and security of persons with disabilities
Guidelines on Deinstitutionalization, including in emergencies
General Comment No.5 (2017) on Living independently and being included in the community.
Lesotho Persons with Disabilities Equity Act