Kaleen Chikowore

ONE of the major talking points of the past two weeks is that of the paralysis of the High Court which followed the Lesotho Electricity Company (LEC)’s decision to abruptly cut power supplies over a M1, 4 million debt which had accumulated over the past few years.

The power utility company cut off supplies on 28 March 2022, leaving the courts in darkness. Cases that were on the roll for that week could not be heard at all. Some of the courtrooms are constructed in such a way that they remain dark inside even during daytime as outside light cannot filter in. Moreover, without electricity, it is impossible to record the sessions and even heat up the rooms which are beginning to get cold as temperatures drop.

One of the major cases that failed to proceed was that of civil servants who had petitioned the High Court to grant them permission to stage a protest march to force the government to award them massive 25 percent salary increments for the 2022/23 financial year which began on 1 April 2022.

Another case that failed to proceed during the week-long power cut was former army commander, Tlali Kamoli, and eight other soldiers’ trial for the June 2015 murder of army commander, Maaparankoe Mahao.

The civil servants’ application was heard at Judge Molefi Makara’s private residence in Florida, Maseru. The Mahao murder trial was eventually postponed to 11 April 2022.

Electricity was eventually restored on 5 April 2022. High Court and Court of Appeal Registrar, ‘Mathato Sekoai, said the judiciary had paid about M1, 2 million towards settling the M1, 4 million LEC debt. She appealed for time to raise the remaining balance. Before then, she had revealed that they were hamstrung in their operations due to underfunding from the government which had only allocated them M118 207 676 for the 2022/2023 fiscal year. The money will not be enough to cover the entire judiciary’s expenses from April 2022 to March 2023, she said.

She said of that budget, M99 207 680 was for salaries, meaning that only M19 million remained to cover the operating costs of all the courts- from the High Court down to the subordinate courts countrywide.

The High Court power cuts are reminiscent of similar disconnections at the Maseru Magistrates’ Court over an M1, 3 million debt early last year.

The resultant paralysis of the lower courts in Maseru last year and the more recent suspension of High Court operations are both symptomatic of a much wider crisis playing out in the country’s judiciary where courts in remote areas are also failing to deliver services to the public.

As analysts point out, the paralysis of the courts, while tragic and regrettable, is not at all surprising.

“It is the logical outcome of years of mismanagement and deliberate underfunding of the entire judiciary by the central government,” said a lawyer who spoke to this publication on condition of anonymity due to professional reasons.

“We have self-seeking politicians who have no interest in funding the judiciary or any of the other key state institutions to perform their mandates. They will only put money when they see a personal benefit like they did back in 2017 when they raided the National Manpower Development Secretariat (NMDS) to fund the snap elections which were held only because power-hungry politicians are always prematurely collapsing governments whenever they don’t serve their personal interests.

“Only last year, we saw the legislators awarding themselves M5000 each as monthly fuel allowances. This was despite that there was a lockdown which meant that there was no inter-district movement and political meetings allowed. As long as there are such selfish politicians, the judiciary and other state institutions will continue to be starved of funds,” the lawyer said.

Prominent lawyer and member of the Lesotho Lawyers for Human Rights, Advocate Napo Mafaesa, has previously said the failure to adequately fund the judiciary and other key state institutions points to a much bigger problem of misgovernance by successive governments which have ruled the country in recent years.

“There’s no political will to fund the judiciary to enable it to discharge its functions. This is despite that the constitution says that we should have access to the courts to get justice. The minute court services are inaccessible to ordinary citizens, their rights are infringed.

“This is entirely the government’s fault. The problem of underfunding is political. There is lack of political will to support the courts through the allocation of adequate funds,” Adv Mafaesa said.

He said resources would always be scare but critical sectors such as the judiciary should always be prioritised to ensure the wheels of justice continued to turn smoothly.

Lt-Gen Kamoli’s lawyer, Letuka Molati, bemoaned the paralysis of the courts due to the power cuts.

He said the resultant postponement of cases inconvenienced lawyers as they were no longer plan properly and they were no longer certain when their clients’ cases would be heard.

Their clients also suffered “serious financial prejudice” whenever their cases were postponed, he said.

“The accused persons have suffered serious financial prejudice,” Adv Molati said of his clients in the Mahao murder trial.

“They already paid to book lawyers for the week and the postponement means they will have to pay to book them for next week. In addition, there has been serious disturbances to the flow of the case as future trial dates will have to be secured at a great inconvenience to the lawyers as well.

“The financial suffering that has been seen is immeasurable. It is a futile exercise to sue the government for compensation because it takes a long time to get payment. One can only hope that this will not happen again in future,” Adv Letuka said.

Southern Region Chief Magistrate Manyathela Kolobe is also on record saying successive governments have been prioritising other issues ahead of the judiciary because there were no political benefits to be derived from the judiciary.

“We are always making inquiries to establish why the state is not interested in investing in the justice system and we are always told that government is broke.

“With the (Pakalitha) Mosisili government (from 2015 to 2017), we were told that funds were diverted to settle the debt owed to (South African company) Bidvest which supplied the government fleet. Last year we were told that funds have been diverted to priority areas like fighting Covid-19. Right now, the budget is still very low.

“Clearly, the justice system is not a priority for any of the successive regimes. I think this is because the justice sector is not a playground for politicians to score political points. Their priorities lie where they can easily score political points.

“Here in the justice sector when a politician is wrong, we say it like it is and the judiciary does not help them to survive as politicians. Therefore, they will divert their energy and focus to areas where they can get mileage to survive in politics,” Magistrate Kolobe said.

In another development, the Judicial Service Commission (JSC) has also been found wanting when it comes to renewing Zimbabwean judge, Charles Hungwe’s contract, as well as recruiting another foreign judge to preside over the high-profile cases involving politicians, serving and former members of the security agencies.

Justice Hungwe’s contract expired on 31 March 2022 and it is unclear if it has been extended. The JSC has been extending the contract for very short time periods, sometimes just a month as it did in February, even though it was clear that he would not have completed his cases.

This is despite that the European Union (EU), which pays Justice Hungwe’s salary, has said that it is prepared to continue funding his salary “for as long as it takes for him to finalise his cases”. These include Lieutenant General Kamoli and others’ trial for the Mahao murder.

EU Ambassador to Lesotho, Paola Amadei, also said they were even prepared to fund the recruitment of another foreign judge but everything depends on whether or not the Lesotho government approaches them for such support.

But despite the blank cheques being offered by the EU, the JSC has not appeared to move an inch.

“This is the same JSC that complains about perennial underfunding by the government but when funds are offered to them like manna from heaven they dilly-dally,” said a lawyer who refused to be named due to an alleged gag on speaking to the media by the Law Society of Lesotho.

“They (JSC) were the ones who requested foreign judges back in 2018 when they were under the leadership of Justice (Maseforo) Mahase. At the time, the argument was that foreign judges’ verdicts in the high-profile cases were less likely to be viewed as biased. The JSC leadership may have changed hands (with Chief Justice Sakoane Sakoane taking over), but the argument for retaining them still makes sense,” the lawyer said.

Inertia by the JSC of Justice Hungwe’s contract and the recruitment of another foreign judge could derail the high-profile cases. This is uncalled especially in a situation where someone else, in this case the EU, is picking up the tab for their salaries, the lawyer said.