Root of courts’ failure exposed

RELEBOHILE TSOAMOTSE

MASERU – The continued absence of a substantive judicial administrator is compromising judicial services and ultimately slowing down the wheels of justice delivery, experts have warned. These views emerged at a pre-budget dialogue on the funding and assistance of the judiciary organised by the human rights watchdog, Transformation Resource Centre (TRC), on Tuesday last week.

The judiciary has for the past three years returned unspent funds to the Treasury after failing to utilise the entire allocation, while ironically, the entire court system around the country remains plagued by a dearth of basic infrastructure and provisions. Failure to exhaust budgeted funds is attributed to the skills vacuum in professional administrative work and the requisite technical know-how on how to utilise the budget effectively, while on the other hand, the entire system malfunctions due to underfunding.

Execution rate and previous budget allocations are determining factors in what ministries, departments, and institutions get out of a budget share as a government budget. Economist and National University of Lesotho (NUL) lecturer, Dr. Machema Ratjomose, said failure to fully utilise allocated budgets leads to a reduced allocation in the following year. Machema outlined numerous factors that are considered in the preparation of budget estimates, which include previous allocations and evidence of an ability to utilise the allocated budget.

A department, ministry, or institution that fails to utilise its previous budget, he said, may not attract an increased budget and risks having its budget cut. Other factors include national priorities (NSDPs) as well as presentations or discussions during budget consultations. Participants and key speakers at the event concurred that the appointment of a judicial administrator would not only help provide strategic financial direction but also assist the judiciary to optimally utilise its budget.

As it emerged, judicial funding has over the years been compromised because the institution is unable to utilise all monies allocated to it. A judicial administrator with the technical know-how of utilising the budget, they said, would steer the administrative part of judicial work. A judicial administrator is supposed to oversee non-adjudicative work and would be responsible for the preparation of the judicial budget and the keeping of proper books.

The judiciary has never hired a judicial administrator, despite the Administration of the Judiciary Act of 2011 requirement that the administrator be responsible for the day-to-day running of the key sector’s non-adjudicative work and implementing resolutions of the judiciary and the Judicial Service Commission (JSC). The Registrar of the High Court and Appeal Court is currently the judiciary’s Chief Accounting Officer, who effectively administers the day-to-day operations of the court in the absence of a judicial administrator.

However, there are concerns that administrative functions in the judiciary are not executed by individuals trained for administration and management or qualified for the job, with far-reaching consequences. The judiciary has for years not been receiving adequate funding, according to different heads of the institution who have raised that concern in the past. In his remarks during the official opening of the 2024 legal year recently, Chief Justice Sakoane Sakoane, following in the footsteps of his predecessors, bemoaned a lack of funding for the judiciary.

He said the budget is decreasing progressively every financial year instead of increasing while more cases are entering the judicial system, thereby clogging the system and increasing the failure to dispose of cases timely and effectively. According to Justice Sakoane, the judiciary is unable to make ends meet and simply cannot afford basic needs.

“The budget allocated to the judiciary does not meet the basic needs such as statutes, law books, law reports, and law journals. Without these absolutely necessary tools of the trade, judicial officers cannot deliver speedy and quality justice. In fact, their unavailability renders courts dysfunctional,” Judge Soakane said. He added: “The judiciary has not been allocated a capital budget for several years, and the result is that court buildings are not being maintained.”

Yet it emerged during the dialogue that the judiciary was unable to spend all the funds allocated to it and has continued to return some year in and year out. Law and Justice Principal Secretary (PS) Lira Ralebese said there is a weakness within the judiciary wherein administrative functions are in the hands of people who are not trained for the administrative work. He added that this is a flaw not only plaguing the judiciary but is also commonplace in other government ministries.

The ministry of health, he noted, uses professionals to handle administrative tasks, while in the public works department, engineers and architects also work as administrators. Administration and management are professional disciplines in their own right,” he said. Deploying administrators to handle administrative work, he added, will bring the technical know-how, ultimately leaving the judiciary in a better-off state.

“Administering justice and resources are two different things,” he added. However, Justice Sakoane said he and the President of the Court of Appeal, Judge Kananelo Mosito, submitted a comprehensive report in April 2021 with estimated costs for the needs of the judiciary, but “nothing has been done in response.” That report, he said, provides full details on the deterioration of courts, especially in the lower judiciary, adding that central and local courts do not function when the climate is unfriendly for human activity.

During the dialogue, NUL Law Lecturer Dr. Itumeleng Shale spoke on the judiciary’s underfunding and ripple effects on Lesotho’s justice system. She said that despite efforts made and advocacy around the independence of the judiciary, the country still finds itself in a situation where the executive controls the courts’ administrative processes and budget.

The fact that the judiciary has to go through the executive for proper functioning, including the release of the budget, compromises the judiciary, as “judges find themselves in the compromising position of having to lobby politicians and executive officials for funds for improvement and simple repair to court buildings… in violation of the democratic principles of rule of law and separation of powers.” A history of weak administrative and budgetary separation of the courts from the Ministry of Justice is also said to have restricted judicial autonomy and undermined independence. 

On top of that, Dr. Shale said the judicial system’s underfunding undermines legitimacy in the eyes of the public and weakens the morale of judicial officers. It further generates suboptimal performance across the judiciary at both institutional and individual levels, he added. On budgeting itself, she said underfunding turns budgeting into a highly politicised, high-stakes activity, rendering the judiciary impotent and lacking leverage.

Apart from the High Court buildings and infrastructure that has not been maintained for years, some Magistrates’ Courts and other lower courts in most districts around the country are either completely dysfunctional or on the brink of collapse due to years of continued underfunding by the government. Judicial officers struggle for basic things like stationery and work on dilapidated furniture.