Chief Justice pours his heart out

Dissects limitations in the current judicial system

MATHATISI SEBUSI

MASERU – Almost two years after government committed to pursuing the assessment of citizens’ perceptions of the justice system and identifying barriers to its access, the Chief Justice Sakoane Sakoane has said lack of access to justice reinforces existing inequities in the country.

The Chief Justice has therefore implored the National Reforms Authority (NRA) to strengthen governance and the promotion of equal access to justice, a mission he said the Authority can pursue by framing policies and amending laws as they reform the judiciary.

Justice Sakoane made these remarks while addressing the NRA this week in Maseru, during a special meeting in which he contributed to the parameters within which the judiciary should be reformed as part of the larger national reforms process.

In 2019 then Minister of Law, Habofanoe Lehana, represented Lesotho in a meeting of November 4 to 9 in Colombo, Sri Lanka, in which participating states resolved to facilitate, where appropriate, the assessment of legal needs and the barriers to access to justice in individual member countries.

The Colombo meeting brought together law ministers of the Commonwealth under the theme ‘Equal access to justice and the rule of law’ for their individual states.

In an interview with Public Eye that same month upon his return from the meeting, Lehana declared the government’s position in the acknowledgement of the need to overhaul the justice system.

He said the government was steadfast on such an overhaul. Two years later not much has changed, except for the ministers pursuing this end.

In his remarks Chief Justice Sakoane said in ensuring access to justice for all, the NRA should consider not only the costs incurred by the judiciary in achieving its mandate, but also the cost that citizens incur in order to access justice.

The judge said a lot of people are discouraged from seeking justice or even testify due to, among others, financial constraints as magistrate courts are located in the districts while the High Court and the Court of Appeal are housed in the capital Maseru.

He said the country’s judicial structures at the moment favour the urban population over those in remote areas.

Justice Sakoane also noted the marginalisation brought about by language barriers, indicating that “the poor and those that reside in remote areas of the country are marginalised by the language used in the courts of law that forces them to seek and pay lawyers to represent them in court.”

The Chief Justice said this, as a result, restricts those without financial means in seeking justice – leaving the less fortunate aside and at the mercy of community-based courts with no option to appeal their cases.

Justice Sakoane further brought to NRA’s attention the mounting backlog and stagnant cases in the courts’ rolls, a reality he said restricts the effective execution of their mandate, coupled with lack of resources, shortage of staff as well as interference in judicial processes by politicians.

“Currently cases are stagnant because people are reluctant to come to court to testify, not just because of travel, food and accommodation costs that they have to pay for themselves but also because they are worried about their safety as there are no guards to ensure their safety during testimonies.

“The government has for years promised to address these challenge but has not delivered to date. So, when drafting a policy meant to reform the judiciary, please ensure that accessibility to justice and the courts of law are guaranteed,” advised Sakoane.

“These are the main priorities that need to be considered before we can address challenges faced by the judiciary in ensuring that all cases come before court on time.

“Again, when addressing this issue of the backlog of cases ask yourself whether Lesotho has enough judges, or if the courts still have to operate with eight to 10 judges just like they have been operating since 1966 while other country equivalent to us like Botswana and eSwatini have more than 30 judges on their benches and their high courts are not only located in their capital cities. These are among the things that you should also consider,” he continued.

He went on to urge the reforms body to take note that Lesotho now has enough qualified persons that could be hired as judges instead of importing foreign judges, suggesting that foreign judges outnumber locals on the bench.

The Chief Justice said it is important that high status judges be citizens of this country, noting that judicial power belongs to Basotho as a people but is entrusted to the courts to administer justice on their behalf.

Justice Sakoane observed the only institution of the three arms of government that has a large proportion of foreigners is the judiciary, while parliament and the executive have no foreigners that lead them.

He said it shall remain questionable why government allows foreign judges to represent the local judiciary, pointing out that their arrival in the country might have been due to the country’s need then “but as of today the judiciary does not need them at all.”

Speaking on current challenges faced by the judiciary, the Chief Justice continued that as much as there are magistrate courts in the districts, service delivery remained ineffective.

He noted that magistrates’ courts have no buildings of their own and operate on leased properties that mostly have no water, electricity and toilets.

The situation is even worse during winter as services start very late due to cold weather, he added.

He said he has written a report on these challenges and presented it to the government asking that the challenges be addressed.

Justice Sakoane expressed hope that the report will help government to make an informed budget for the judicial sector in the next financial year, a budget that will address the sector’s challenges.

Coupled with his presentation before the NRA, the Chief Justice has also submitted proposed judicial policy draft amendments that he believes the institution will look into and draft a new reform policy aligning itself with some of the things outlined in the draft.

Speaking at the same event, Justice Molefi Makara echoed most of the sentiments shared by his principal but highlighted that all past governments have undermined the judiciary and proof of this is the meagre budget annually allocated for the sector.

He said for years the judiciary has been struggling to execute its tasks due to lack of resources and, instead of being afforded them, they have been accused of incompetence and substituted with “imported judges that do not even match our legal capabilities.”

He entreated the NRA to enact policies that will ensure that the judiciary becomes independent and that judicial appointments are transparent and made on merit.

Justice Majara said a new judicial policy should be crafted in a way that will restrict politicians from interfering with the sector.

In responding to concerns shared by the learned judges, on behalf of the NRA Parliamentary Reforms Technical Committee Chairperson, Moipone Piet pointed out that they appreciated the interaction and were fully aware of the tabulated challenges.

She was, however, concerned that the time they have been given to complete the process is very short and restricts them in the production of quality and relevant products to their best ability.

“The way things are pushed within a short period and the speedy rate at which they are done is overwhelming. We are not even sure if we are indeed in the reform process as things are done in such a hurried pace.

“The speed that which things are done here gives me doubt that everything will be done to perfection. We wish to address every challenge but I doubt all things that have been presented here will be all addressed or considered when drafting the policy. Everything is done very quickly.

“We need to sit down with the government and talk things out for the benefit of the country. The rate at which things are going on will not yield the desired results,” she said.

“The problem is that the government expects us to make policies to reform sectors that have been destroyed for years within a short period of time,” Piet said.