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Deal with root causes of crisis in judiciary

ON Thursday Justice Ts’eliso Monaphathi ruled that Chief Justice Mahapela Lehohla, his boss, had erred in appointing High Court registrars and their assistants to preside over uncontested matters.
This was after the Law Society of Lesotho had challenged the appointments saying they were unconstitutional and a violation of the High Court Act.
Law Society President Zwelakhe Mda called the ruling a “landmark judgment”.
We agree.
That a judge had the courage to rule against the head of a court under which he falls is an indication of the independence and integrity of our judiciary system.
The chief justice’s motive in making the appointments was to reduce the mounting backlog of cases in our courts.
We don’t doubt that this was a noble idea to deal with a situation that has become a national embarrassment.
But now that the idea has been rejected as unconstitutional by a judge from the same court whose problems it sought to solve we believe the chief justice must look at other solutions.
Our opinion is that the backlog in our courts is a result of many problems that will not be sorted by a one-size-fit-all solution.
We believe the problems start with the lack of human resources at the magistrates’ court.
The largest portion of the backlog is in the form of civil cases in the magistrates’ court.
This is because the regulations state that criminal cases take precedence over civil cases.
Our magistrates are already too overwhelmed with criminal cases to deal with civil cases.
It cannot be denied that there is a serious shortage of magistrates and prosecutors.
The other problem is that although the magistrates’ courts deal with more cases and are the starting point of almost all cases in this country, it remains the most under-resourced and under-staffed of them all.
The truth is that if this lower court had enough judicial officers we would not be having such a huge backlog.
This is the same problem at the High Court where a bench of 10 judges has to deal with hundreds of cases.
The chief justice himself is not helping matters by not hearing cases.
There is also the issue of how the Directorate of Public Prosecutions (DPP) is handling cases.
For some time now the DPP seems to have developed a penchant for pushing cases that might otherwise be heard in the magistrates’ court to the High Court.
This is happening especially in fraud cases.
It is now commonplace that any fraud case involving a senior government person or a prominent person is moved to the High Court. This happens despite the fact that magistrates are competent enough to deal with such fraud cases.
The DPP also seems to have decided to do away with the use of preparatory examinations to decide whether a case should tried in the magistrates’ court or transferred to the High Court.
Because the DPP is not doing preparatory examinations for cases in which a person has died you find that the High Court has to deal with cases of culpable homicide and common assault that should have been tried in the magistrate’s courts.
This would not be the case if the DPP was using the preparatory examinations to sift the cases that proceed to the High Court.
Lack of money has also contributed to the backlog.
We have had murder cases being delayed because the High Court did not have money to pay allowances for witnesses.
Add this to the fact that lawyers themselves have a tendency to seek unnecessary postponements in difficult cases, and you see that piece-meal solutions are just not enough to deal with the backlog.
In all this we cannot discount the element of laziness by our judicial officers. Incompetence too is a factor.
The fact that our judicial officers are underpaid cannot be ignored. Neither should we discount the fact that some judges and magistrates are disgruntled with the way the courts are being run.
All these problems are not insurmountable.
What is required is the will and courage to solve them.
The chief justice should lead the search for the solutions to this crisis.
We have denied our people justice for too long.

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