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Judicial reform, a wild goose chase

Mzimkhulu Sithetho

ONE of the cardinal pillars of a functional democracy is speedy delivery of justice to the people.

Speedy delivery of justice denotes that cases brought to the courts of law are investigated and prosecuted expeditiously so that victims of crime are assured of justice and that those on the wrong side of the law are dealt with accordingly.

This not only assures citizens of rule of law, but it also maintains society’s stability.

Lesotho has not fared well on this front as there is a longstanding backlog of cases in the courts of law, with some cases dating as back as five years or more.

Basotho are said to be a highly litigious society, a society that delights in resorting to the courts of law to seek legal redress whenever aggrieved.

While it remains everyone’s democratic right to do so, there are however adverse implications on the justice system.

A research that was undertaken on the state of justice and rule of law in Lesotho under the auspices of the African Governance Monitoring and Advocacy Project (AFRIMAP) of the Open Society Foundation (OSF) in 2013 unveiled a myriad of challenges facing Lesotho’s justice delivery and management.

The report, which paints a dim picture about Lesotho’s justice sector, states that for a long time the justice sector has been characterised by underperformance and a substantial backlog of cases.

The report states: “The most common challenge that has been experienced by the institutions in their attempts to improve their relevance, efficiency and effectiveness has been the inadequacy of financial and human resources, which are blamed mainly on resource constraints.”

The report further states that budget allocations for the justice sector have been determined by a number of factors which relate to the political history of the system of government in Lesotho.

“For quite some time, justice and the rule of law were not regarded by policy-makers as a development priority, despite the contribution of service fees, spot fines and other payments collected by institutions in the justice sector to the national budget,” says the report.

Disturbed by the anomaly obtaining within the justice sector of Lesotho, Advocate Thuso Ramabodu, human rights officer at the Transformation Resource Centre (TRC), advances the argument the problem of a backlog of cases jeopardises access to justice as cases drag for a long time.

This he says compromises delivery of justice and consequently, citizens will lose confidence in the justice system.

Ramabodu says if the problem of delayed in justice continue unabated, it could trigger mob justice, where citizens take the law into their hands after failing to get redress from the law.

He believes that the genesis of the problem besetting justice delivery can be traced to serious capacity constraints within the sector, a challenge that he says cuts across the whole justice sector of the country.

Ramabodu asserts that the problem starts at prosecutorial level where police investigate cases, a stage which has been clouded by suspicions that there are instances of missing dockets and files in the registry.

In cases that involve senior politicians and those who wield economic power, Ramabodu charges that while the Directorate on Corruption and Economic Offenses (DCEO) had done its job, cases have been withheld until they remain unresolved.

He suspects there is corruption related with the administration of justice where it affects the “big guns” of society.

Ramabodu recommends that the justice sector be decentralised whereby high courts are erected in the districts so that cases are heard in the districts without people having to travel all the way to Maseru.

He says magistrates in the districts do not handle other cases due to their limited jurisdiction and contributes to the ongoing deadlock of cases.

President of the Law Society of Lesotho, Advocate Monaheng Rasekoai, who is also a practising lawyer is also perturbed by the malaise that has characterised the justice sector and argues that the issue of the historical backlog of cases can be traced to many factors such as lawyers postponing cases, especially in civil litigation.

With regard to criminal cases, Advocate Rasekoai notes that prosecutors postpone cases on account of witnesses not turning up for cases to provide evidence because they have no money to travel to courts as they are sponsored by the state.

Sometimes, there is no judge, he says.

He blames the endemic problem to poor administration in the courts’ system, which he says is slow and inefficient. Other factors, according to the Law Society’s president, include the fact that there are many cases to be heard by a few judges who are overworked with a heavy load of cases.

“The challenge of personnel in the courts of law ranges from judges to officers who work in the high court.

“Even those that are on the court roll are hard to process due to the challenge of staff shortages. “Sometimes there are no resources for sending out summonses or subpoenas to witnesses,” says the President of the regulatory organisation for the legal profession.

This point is buttressed by the justice sector and rule of law report earlier referred to, which states thus: “. . . the cause of the inordinate delay in dispensing justice in Lesotho does not lie in the system itself, but in the human factor that operates within the parameters of the system. Many of the human factors relate to legal practitioners, the police, presiding officers and public prosecutors.

The number of legal practitioners is insufficient and their distribution across the country is uneven, with the majority concentrated in the capital city.”

For the judges, who he says are overloaded with cases, they have a challenge of writing judgements as it is not easy to write a judgement, it needs research and focus.

He charges that when cases are postponed, it is sometimes a relief for the judges as they can have a brief break to sit down and write judgements for cases that they have competed.

“When this happens, the public loses confidence and trust in the justice sector as ‘justice delayed is justice denied.’ It is a constitutional imperative that criminal cases should be dealt with within a reasonable time,” says the Rasekoai.

Quizzed on what the problem is in recruiting more judges, the president noted that the recruiting body for judges, the Judicial Justice Commission (JSC) is made up of people who are not from the legal profession but public servants and bureaucrats.

He complains that even the Law Society is not involved in the recruitment of judges. The JSC is made up of the Chief Justice as the Chairperson, the Chairperson of the Public Service Commission (PSC), the Attorney-General, and a retired Judge.

He further contends that he finds an ideal situation would be when the JSC includes the Dean of the Faculty of Law at the National University of Lesotho, Law Society and the President of the Appeal Court.

“The Challenge is that the CJ works with bureaucrats and the whole issue of recruitment is a preserve of the executive branch of government with poor credentials,” Rasekoai argues.

The Justice Sector and Rule of Law report gives credence to this view by stating that all members of the JSC are people who were appointed to their positions by the Prime Minister.

It says that this inherently limits the independence of the judicial appointment process.

“The independence of the JSC can be enhanced by expanding its membership to include non-state stakeholders such as representatives of the Bar, the Law Society and civil society, which could be represented by an umbrella body such as the Lesotho Council of Non-Governmental Organisations (LCN),” the report says.

According to the Law Society president, most of the judges on the bench have not practiced but ascended to the position after serving as magistrates.

He contends that magistrates are people who have been appointed right from school and they have no clue of what it is like this side of the bench (legal practice). Some judges ascended to the senior judicial bench after serving as magistrates and then later after becoming registrars of the high court, then, they are appointed to the bench, says Rasekoai.

The Law Society president does not mince his words on the fact that there is infiltration of the justice system by the executive branch of government, which he says compromises the expected independence and autonomy of the courts of law.

He says for the appointment of the chief justice, the Prime Minister recommends a candidate to the King, who he says is just a ceremonial figurehead with no executive powers to review the recommendation.

However, Rasekoai is quick to say that it is not phenomenal in Lesotho that a head of state is the one who has a final say in the appointment of the CJ, as in countries that are republic, like South Africa, the president, who is the head of state makes the decision.

The critical issue that has been a worry to Basotho has been the issue of unresolved deaths, where people either died mysteriously or were murdered in broad daylight, but the law has not taken its course to track down the murderers.

In 2002, the son of the former Prime Minister, Maile Mosisili was gunned down by unknown people and a case of murder was opened.

However, there is no development or conclusion of the case to bring perpetrators to book.

This has left many unanswered questions on the rule of law if criminals (or the criminal) responsible for killing the prime minister’s son cannot be prosecuted.

In 2006, unknown assailants gunned down the former deputy leader of the Basotho National Party (BNP), Bereng “Selala” Sekhonyana at his home in Ha Hoohlo.

This happened amid the squabbles that had torn the BNP apart. But perpetrators of the murder have not seen their day in court.

Many businessmen who were gunned down by unknown assailants, to date, and their cases remain elusive as murderers have not been arrested.

The report earlier referred to indicates that: “This serious backlog of cases was also to be observed in the High Court, where large number of murder cases, dating back in some cases to the 1980s, had

simply been filed, with no activity on them for some years.”

The report also states that the delays that have resulted from the current arrangement are exemplified by murder dockets that have been awaiting assessment for as long as 20 years.

This is exacerbated by the absence of any mechanism for holding the Director of Public Prosecutions (DPP) accountable for such delays.

  • Sithetho is a journalist living in Maseru

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