Chief Justice lays down the law


…warns govt to ensure a conducive environment for an effective judiciary  

Lekhetho Ntsukunyane

CHIEF Justice Nthomeng Majara has warned government to ensure a conducive environment if the judicial system is to be effective.

Addressing delegates to Monday’s official opening of the 2015 judicial year, Justice Majara —who assumed office on 28 August 2014 to become the country’s first woman to occupy the post — emphasised the judiciary should never be comprised because of lack of resources, adding that it must not be indebted to any individual but the country’s constitution.

“I wish to remind Basotho that it behoves on all of us to jealously guard and protect the integrity, dignity and authority of our courts, starting with the leadership in government and that of all political parties,” Justice Majara said.

“Politicians, supporters, the media, legal practitioners, judicial officers, law-enforcement agencies, security forces and every member of the public are all under the constitutional duty to respect, strengthen and protect the rule of law, for without it, the consequences are too ghastly to contemplate.”

As an institution, she said, the judiciary “is not, and should never be beholden to anyone but the constitution.”

“Judgments and decisions of the courts must be apolitical and free from bias at all times,” Justice Majara added.

“Judicial officers are not in this office to pursue anyone’s agenda. They are certainly not here to make populist decisions. Our role is to uphold the law and dispense justice to all without fear, favour or prejudice.

“Abusing and insulting the judiciary, calling them names and claiming or ascribing them to any political party or formation is very wrong, not to mention dangerous and must never be countenanced, let alone normalised.

“If anyone is unhappy or dissatisfied with a decision or judgment of the court, they must follow due process because that is exactly the reason why the courts are hierarchical in nature. Ours is a self-correcting institution where judicial decisions are subject to scrutiny and correction from the lowest to the most superior court of the land.

“It is therefore, very mischievous for anyone to try and tarnish the image of the courts and bring it into disrepute through unfair, biased and oftentimes unenlightened criticism simply because they happen not to like particular decisions.”

However, the Chief Justice said for the judiciary to be effective and maintain its independence and dignity, government had to fulfill its constitutional duty of providing it with the necessary resources.

“This important provision casts a sacred duty upon the government of Lesotho, which should never be sacrificed at the altar of politics or any other cause,” she said.

“Presently, Lesotho’s judiciary needs more officers, additional courts especially in peri-urban areas, support staff and other resources that go with it.

“With all due cognisance and consideration of the financial constraints Lesotho is presently facing, I still wish to beseech the Prime Minister, Executive and Parliament to always remember that the budget ceiling for the judiciary should not be decided solely upon or constrained by the fact that the institution does not generate revenue aside from meagre fines, revenue stamp collection and other fees.

“Justice is lofty, noble and ideal in a democracy that its value should not be measured in monetary terms or its needs gauged in material terms. Justice brings peace and stability which are the bedrock of safety and prosperity, amongst others.”

The Chief Justice also called on lawyers to assist the courts by maintaining the highest standards of professionalism.

“Legal practitioners must show utmost respect for the courts at all times by following rules and procedures, preparing properly for the prosecution or defence of their cases, presenting well-researched and articulated arguments, giving proper guidance, but above all, proper counsel to their respective clients to accept and respect decisions and judgments and to take appropriate steps whenever they are not satisfied. This worrisome phenomenon of insulting the courts and individual judicial officers and accusing them of all manner of misdemeanour must be a thing of the past.”

Justice Majara also urged the media to exercise its freedom to inform, educate and entertain the public “responsibly, truthfully, fairly and professionally”.

She continued: “It is a fact that the media can make or break, hence if they sacrifice their professionalism and fail to report or publish truthfully, fairly and honestly, they can be part, if not the root cause, of national, regional or international catastrophes.”

Likewise, members of the public have the responsibility to “learn and appreciate” how the law and courts function, she added.

“Populism and bias do not form part of an effective, fair, impartial and independent judiciary. People must always do their research first before peddling unfounded allegations and distorting judicial decisions in pursuance or satisfaction of their respective private and often selfish agenda.”

Judicial officers, she further said, had a constitutional duty to serve the nation “as competently, diligently, fairly, professionally and speedily as is humanly possible. Judicial officers are public servants whose salaries and other entitlements are paid by this nation whose majority live in abject poverty.”

However, Justice Majara also pointed out that judicial independence goes hand-in-hand with accountability.

“We are subject to criticism because it is through it that we are able to correct our faults and shortcomings and provide better service to the public. Our conduct must, therefore, be professional and above reproach at all times. Judicial officers must earn the trust, respect and confidence of the nation they serve.

“They must not only dispense justice but must be seen to be doing so. They must be wary not to actively associate themselves with active politics or openly declare their preferred political parties or formations. Their involvement in politics must be limited to exercising their constitutional right to participate in elections by casting their votes.”

Meanwhile, Justice Majara lamented the dire shortage of resources in the judiciary.

“The main High Court has seven judges on its permanent establishment, who deal with all mainstream cases. There is also the Land Court which, until recently, has been a one-woman show in that all the land disputes were being handled solely by Madam Justice ’Maseforo Mahase until the recent addition of two Acting Judges, Messers Sakoane Peter Sakoane and Keketso Lesihla Moahloli. Ideally, all three of them should be dealing exclusively with land cases. However, due to a serious shortage of judges when taken against the extremely high rate of new cases, every now and again, circumstances demand that they lend a helping hand and assist with mainstream cases, not to mention that all High Court judges also deal with constitutional matters which take up three judges at a time,” she said, adding there was pressing need to increase the number of judges.

“For instance, Botswana has a total complement of 27 High Court judges who serve almost the same population size as us. It is, however, pleasing for me to announce that the government has since promised to increase the current number by at least five more judges. We await this with bated breath for although this will not be enough, it is sure to bring much needed relief.”

Justice Majara also noted the poor state of the country’s courts.

“The Palace of Justice and Court of Appeal buildings, flagships and headquarters of the judiciary, which are more than 10 years old, have been leaking to such an extent that they have become unsafe for human habitation and storage of equipment, books, records and dockets.

“During the rainy season, the leaking roofs have caused damage worth hundreds of thousands of maloti to the structure of the building, furniture, legal reading material and other valuable property in the offices and courtrooms.

“Basic resources such as stationery, photocopying machines, printers and heaters have had to be sourced from our development partners for which we are grateful.

“With the meagre funds that we have in the recurrent budget, we are sadly unable to meet the entire costs of laying-out a new roof to the Palace of Justice. So far, we have only raised M250 000 of the M1 million we need for the payment of the entire project.”

The Maseru Magistrate’s Court buildings, on the other hand, are also in an “awful state of disrepair” due to lack of funds for maintenance, Chief Justice Majara further said.

“It becomes a nightmare to render services to the deserving public. This is also a relatively new public building which needs to be properly maintained. The Local and Central courts, in the outlying and far-flung areas of the country also lie in a terrible state of disrepair and in some areas, we have been forced to operate from rented private homes that double-up as courtrooms, holding cells, offices and residences for court officials.

“Unfortunately, in areas like Koro-Koro, Kolo and Fika-le-Mohala, where the courts have to operate from rented premises, this arrangement continues to take a huge chunk of our meagre budget for payment of rentals. Needless to mention, this is not the most conducive and or appropriate arrangement for it places our court presidents and staff in close proximity with the public they must serve with impartiality, which in turn is bound to create the perception of a justice system that is compromised and partial.

“Further, in places like Ha Rampai, Sebapala and Mashai, the courts, staff housing, offices and courtrooms are also in a complete state of disrepair thereby compromising and hampering effective delivery of justice to those communities. With respect to Rampai Local Court, a report was made to the Honourable Minister of Justice that it had ceased operations because besides its poor uninhabitable state, it also did not have a Court President and Clerk of Court.”

The Chief Justice also used Monday’s address to congratulate Dr Kananelo Everett Mosito (King’s Counsel) on his recent appointment as President of the Court of Appeal. However, the appointment has since been challenged by Attorney General Tšokolo Makhethe in the Constitutional Court. The government, he argues in his court papers could not make such a crucial decision as it was only in power on a caretaker basis following the dissolution of parliament on 5 December 2014. Advocate Makhethe was among the many delegates who attended Monday’s opening of the High Court year.

“Barely a fortnight ago, on 15 January 2015, the nation witnessed yet another important judicial appointment, namely that of Honourable Dr Justice Mosito KC, an outstanding jurist, scholar and teacher of law, to the esteemed office of President of the Court of Appeal.”

“I wish to take this opportunity to congratulate Dr Justice Mosito KC and wish him the best in his new appointment. I hope he will continue to selflessly serve this nation with the excellence and industry he is renowned for.”

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