Chief Justice must crack the whip – Moletsane
JUSTICE and Correctional Affairs Minister Mokhele Moletsane has had his fair share of problems in two different ministries since the inception of the Prime Minister Thomas Thabane led four-party coalition government in June 2017.
Appointed first as the Minister of Education and Training in 2017, Mr Moletsane was confronted by a litany of issues raised by teachers’ unions and allegations of his involvement in the awarding of the tender for teaching aid materials.
Mr Moletsane was however, moved to the Ministry of Justice and Correctional Service in February 2018 at the height of a fierce fight between the government and the suspended Chief Justice Nthomeng Majara. This was also at a time when the members of Judicial Association of Lesotho (JOALE) embarked onto a go slow to force the government to give in to their demands.
In this wide-ranging interview, Mr Moletsane (MM) speaks to the Lesotho Times’ (LT) Senior Reporter Pascalinah Kabi about the processes they have gone through in addressing the demands of the judicial staff which he says is not a short process that could be concluded within weeks.
LT: Have you successfully addressed the gripping issues that were topical when you moved to this ministry like the JOALE strike?
MM: On that specific issue, allow me to explain that the magistrates’ complaints about the judicial structure that had just been approved (at the time) and the judgement approving it reached my desk and I went to consult with the judiciary. I needed to establish if their complaints were realistic. I sat down with them and consulted with the Ministry of Public Service because it (the Ministry of Public Service) is the custodian of the structures, salary structures, ranks and everything that has to do with remuneration of public servants.
The Ministry of Public Service indicated that at the time the structure was being dealt with, the judiciary worked closely with the ministry to come up with that structure. Consultations were made and the judiciary structure was made as it is today; a structure that does not discriminate the magistracy from the High Court because to us, the judiciary, regardless of its levels; is one unit.
However, after we sat down and discussed the matter, there were specific issues raised by the magistrates which are specific to them and that included their own safety. They were complaining that they deliver judgements that might not sit well with some people and the absence of secure accommodation compromised their safety. Those who complained the most were the Maseru magistrates. This was because in the districts, government housing priority is given to the District Administrators (DAs) and resident magistrates. However, there are many magistrates in Maseru who do not reside in government houses which are allocated to civil servants.
Magistrates do not qualify for government houses. The law is only clear that judges of the High Court should be allocated government houses because they hold statutory positions. Just like ministers, the law states that those holding statutory offices should be allocated houses but magistrates are on the civil servants level so they do not qualify.
However, we negotiated with the Ministry of Public Service to prioritise magistrates in allocating vacant government houses, especially for those who are renting flats for their own safety and ensure that their security is not compromised. While this is a legitimate expectation, it should be understood that it is being done because of the sensitivity that comes with their job even though they are not in statutory positions. It should also be understood that this will not be an overnight process because we cannot evict people to make way for the magistrates.
Secondly, they raised the issue of their own security but you see the issue surrounding one magistrate’s security cannot be guaranteed by allocating a police officer to each and every magistrate. That cannot happen and it has never happened in any country. There are issues that can be dealt with and implemented whereas there are those than can never happen.
But we agree on the risk and responsibility of magistrates. Their work makes them different from other civil servants. They attract a different kind of attention and that need to be compensated. However, on the issue that this structure is wrong, they have failed to convince us and the ministry of public service does not agree with them.
The government is looking at the entire civil service structure. For instance, there is a consultant who is busy with the teachers’ structure. The structure of the Lesotho Correctional Service (LCS) is also set to be subjected to the same processes by the same consultant who will interrogate issues of salaries in the entire security sector and normalise it. In the same vein, the judicial structure will be subjected to the same processes.
LT: Basotho are mourning about poor service delivery in the judiciary. How is the judiciary hoping to improve judicial officers’ services to ensure that their demands correspond with their work?
MM: There is nothing clearly stated in their proposals that increasing their salaries will have significant change of efficiency and effective administration of justice and I can tell you today that problems in the judiciary are not only about resources. I have been in talks with Chief Justice Nthomeng Majara, the acting Chief Justice ‘Maseforo Mahase now and I have said in parliament and other forums that the judiciary is underfunded and we need monetary resources in order to effectively discharge our duties. You need systems to discharge your mandate, it is not always about money and the management of the entire judiciary should shape up. It is not my business to run the judiciary as a minister of justice. I am a Minister of Justice not a Chief Justice.
I should not be receiving calls or short messaging services (sms) briefing me that, for example, a Ketane local court has been closed for two months. Somebody has to go there. There is a Principal Secretary in this ministry and when there are reports that a certain challenge with a legal office or legal aid which is a department under the ministry of justice, the PS has to go there and establish what is the problem. So, I have said it before and I hope that Justice Mahase has heard me.
I am happy that she recently visited the correctional services – an institution housing people she sent there – to see the conditions of the inmates, how many people are there while on trial and how many people are there because their cases are not moving. I am expecting the head of the judiciary not to sit in Maseru in the High Court but to go to the local courts, to the magistrates, meet with people and hear what they have to say and ensure that people are effectively discharging their duties.
There is this issue of the independence of the judiciary which unfortunately, when the judiciary is not discharging its mandate, they are never interrogated, the minister justice is the one who will be interrogated yet the same minister cannot go into the judiciary and tell people that they are not efficient. It is unfortunate that the blame will be put on the door step of the minister, not the Chief Justice and we need to use this reforms process to change the status quo.
The Chief Justice should not be responsible for the allocation of cases in the courts, the Registrar of the High Court and the Court of Appeal should not be staying in Maseru dealing with High Court and Court of Appeal issues forgetting that there are subordinate courts whose administrator s/he is. So, something has to change fundamentally in the judiciary, we cannot go on like this. They need to understand that they have been empowered by the 2011 Act to be independent and effectively and efficiently administer justice to this nation.
They are independent in discharging their duties and delivering justice but they have to account to this nation yet on the issue of accountability, questions are directed to the minister of justice. People come here every day complaining that judges are failing to issue written judgments. It is not the minister of justice who has to go and approach the judge on the matter; somebody has to know the number of judgements delivered by each judge, how many have been written and be on the neck of that person to do their jobs.
We receive reports that some judges are not going to work and as a minister of justice, I cannot tour every court or correctional service institution in this country. It is the responsibility of LCS Commissioner Thabang Mothepu and Chief Justice to ensure that their respective institutions are functional. We need to know and feel that there is someone in charge of the administration of the judiciary and that is the Chief Justice. She has to crack the whip because if I am allowed to use this phrase, she is the minister of the judiciary.
LT: There is a blurry line between the independence of the judiciary and its accountability to the people through the government. How do you ensure that none is overlapping on the other?
MM: In Lesotho we have not really reached a point where we can confidently say that we have defined this issue but I must say that at the heart of the independence of every institution, there is an accountability component. The legislature cannot only be independent, it has to account. Parliamentarians will stand and fight for the people in parliament when the people complain about poor services in the judiciary. It would be wrong for us to accuse the parliament of meddling with the independence of the judiciary when it demands accountability. In the same vein, if the nation approaches the courts of law for reprieve against the executive and judgements are delivered in favour of the people, we will not complain because it is an issue of accountability to the Basotho nation. In most cases the people complain before the parliament and the executive about poor services in the judiciary, we cannot be seen to be meddling with the judiciary’s independence when we raise these issues. So, it is a very thin line that we have to fully understand – what is the responsibility of the judiciary, parliament and executive – and understand that we are all accountable to the nation.
The courts administer justice to the Basotho nation but the three of us need to ask each other tough questions. The judiciary will question the executive through judgements; parliament has its own way of questioning the judiciary but unfortunately when they do, it is the minister of justice who appears before parliament, not the Chief Justice. When there are murder cases gathering dust in the high court, unfortunately the Chief Justice will never appear before parliament to respond to that question. I am the one responsible for the efficient delivery of justice in the judiciary as an independent body, so somebody has to crack the whip in the judiciary but the main issue is that of accountability. We have to ask ourselves tough questions and that should not be interpreted as meddling with the independence of anyone.
Like you are saying, there is that blurry line and it is a difficult relationship that we have not mastered yet and this is why many judiciary issues are directed to the minister of justice not the Chief Justice. Basotho continue to put the blame on the minister because it is their understanding that I will go there and tell judges to deliver written judgements. I cannot but there is somebody empowered by the constitution to do that and that is the Chief Justice. This is why I am saying the judiciary should move to a place where people appointed as chief justices fully understand that they are a head of the entire judiciary. I am not supposed to be telling the registrar that a certain local court has been closed because I would be doing the work of a Chief Justice when I am not in that office.
There is a chief justice who must fully understand their responsibilities, tour all the courts in this country and understand fully the challenges that each court is facing and where such challenges are linked to lack of resources, she will come to the minister who is the link between the judiciary as an independent arm of the government and the executive. However, there has to be a good management in the judiciary; people should take instructions from the Chief Justice; even disciplinary issues are dealt with by the Chief Justice through the Judicial Service Commission. People are doing as they please in those courts hiding under the independence of the judiciary because they know that there is nothing I can do as a minister of justice to discipline them and I have said to people, even my colleagues in the cabinet, that I do not have constitutional powers to discipline people in the judiciary.
Those powers lie with the Chief Justice and the Judicial Service Commission which is responsible for the hiring and firing of those people. Somebody has to do their jobs but we have the responsibility as the executive to support the judiciary to effectively and efficiently discharge its mandate. It cannot always be about resources, I know they are underfunded but the problems of the Lesotho judiciary are not only about funding; there is a need for good governance in that department. Judges at all levels should attend to their duties and write judgements. From the local court to the appeal court, somebody has to crack the whip and ensure that people do their job.
There are so many issues that need to be dealt with in the judiciary but top of the agenda is that the Lesotho judiciary must seriously get its house in order, it needs to sweep its house. I am not talking about people who hold positions but the entire administration of the judiciary which includes them.
We need a caliber of chief justices who fully know their responsibilities and are able to discharge their mandates in a way that the entire judiciary will know who is in charge and person is accountable to the Basotho nation. We need to ask the Chief Justice why courts are not operational, why is it that the judicial service commission is failing to fill critical positions in the judiciary? Why is that it takes the judicial service commission more than a year to fill positions of a messenger, clerk of court and judge?
LT: What is the effect of the failure by the judiciary to timely administer justice on the funding and effectiveness of the LCS to deliver considering the fact that some people remain in custody for years before having their day in court?
MM: This is a serious issue that has negatively impacted on the correctional services because from time to time we have around 3000 inmates – both on remand and those who would have been prosecuted. This means providing security for those people is expensive to the country. It is also expensive to provide them with medication, rehabilitation services and food.
Each time I tour the correctional service, I normally ask for the number of people who have been prosecuted and those who are waiting for their cases while in custody and there are a lot of people remaining in custody while waiting to have their day in court. Those people are expensive to us and some of those people should not be in there because the police are yet to complete their investigations. There are missing witnesses and in some cases the courts are faced with their own challenges.
I must be honest on this one and state that this is not a judiciary problem alone. It has so many facets that involve the prosecution, police investigations and the judiciary. The three agencies that deal with the administration of justice are all involved and people stay in custody for a very long time for issues that are not of their making. Let me give you an example, we have a situation in Butha-Buthe where an inmate has been in custody for more than two years now.
That inmate is a foreigner and needs an interpreter to appear in court. To get an interpreter who speaks his own language costs money and that person has remained in custody for more than two years. Imagine how much we have spent on that person for two years – feeding him, securing him and providing other services that he may need? So, somehow some innovation has to happen, there should be some of sort of a flexibility in the judiciary and deal with matters within reasonable time because these people become the responsibility of the commissioner and the minister of justice; it becomes expensive.
Besides this, what is happening to these people is plain injustice but I have to say this is beyond the correctional service; it has absolutely nothing to do with us because we only house people that the courts send to the correctional services. I have asked the Acting Chief Justice to tour all the correctional services and I am glad she has heeded the call because those are her people. None of those inmates were sent there by the ministry of justice, lawyers, and the police officers but by the courts. It is therefore important for the Chief Justice and magistrates to tour these correctional services and appreciate the status of those inmates.
You may find that some of those inmates should have been released a long time ago because of different dynamics but as long as the judiciary is somehow detached from the correctional services, those people will remain in custody. In other words, if the prosecution is failing to get its case together; if police investigations are incomplete; if witnesses are missing, the court should immediately take decisive action. We cannot afford to have people remanded in custody while cases are not being dealt with in the courts. It is one of the issues that we are dealing with and it is heavy on our coffers.
The last part of the interview — where Mr Moletsane speaks of congestion in correctional facilities and how that impacts on the ability of the correctional service to effectively discharge its mandate — will be published in the next edition of the Lesotho Times.