Courts’ collapse symptomatic of governance failure: analysts

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Herbert Moyo | Mohalenyane Phakela

ONE of the major trending stories of the past two weeks is that of the virtual collapse of the Maseru Magistrates Court after the Lesotho Electricity Company abruptly cut power supplies due to a M1, 3 million debt which had accumulated over the past five years.

Chief Magistrate ‘Matankiso Nthunya last week said they had scrambled to raise M200 000. However, this is still grossly inadequate as the LEC is holding out for at least half of the M1, 3 million debt. This means that the judiciary will have to fork out at least M650 000 before the Maseru court is reconnected.

“We tried to secure funds to pay up and we even diverted our fuel funds which added up to M200 000 in a bid to settle the debt,” Magistrate Nthunya told the Lesotho Times.

“However, this was not enough. We cannot solve this issue anytime soon. I don’t think the funds we will be allocated for the next quarter will be enough to pay the debt. That is our current situation and we remain clueless as to how we will address it.”

Magistrate Nthunya also issued a statement listing the services that had been affected by the power cut.

“All pending judgements will not be delivered; copies of judgements will not be given and copies of records for transmission to the High Court for review or appeal will not be offered.

“All part-heard cases that have been recorded electronically or those that need electronic recording will not proceed.

“The civil registry will not provide civil records upon demand. The accounts section will not accept any payments. No payments and other claims for reimbursement shall be processed,” Magistrate Nthunya said.

The Maseru court has attracted a lot of publicity for the simple reason that it is located in the capital and in an urban area where the crisis is immediately visible even to the international community.

The Maseru situation is, however, 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 collapse of the courts, while tragic, is not at all surprising. It is the inevitable end product of years of mismanagement and systematic underfunding of the entire judiciary by the central government, the analysts say.

Prominent lawyer and member of the Lesotho Lawyers for Human Rights, Advocate Napo Mafaesa, believes 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.

“It’s about the lack of political will to fund the judiciary to enable it to discharge its functions,” Adv Mafaesa said, adding the resultant paralysis in the courts infringed on citizens’ rights to justice.

“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.

“However, the blame cannot be placed on the judiciary’s door but that of the government. It is not only the magistrates’ courts which are affected but the entire judiciary.

The problem of underfunding is political. There is lack of political will to support the courts through the allocation of adequate funds.

“We know that the government does not have money but the judiciary should at least be allocated the money it needs to fully cover its operational expenses. It is very disheartening when courts ground to a virtual standstill and services are suspended due to power cuts or lack of stationery as often is the case with the magistrate courts,” Adv Mafaesa said.

The electricity problem is just a tip of the proverbial iceberg as magistrate courts and other lower courts in most districts around the country are either completely dysfunctional or teetering on the brink of collapse due to years of underfunding by the government.

According to magistrates and other court officials who spoke to this publication last December, for several years, the government used to allocate quarterly budgets ranging from M150 000 to M200 000 per district for the running of the lower courts.

Although not enough, the funds enabled the courts to pay for basic services like electricity, heating during cold seasons, transport for court officials as well as stationary for use in preparing dockets, summons and other court documents.

But since 2017 the budget allocations have been severely reduced and during the first quarter of last year for example, the Mohale’s Hoek district was given a paltry M18 793 to cover operating expenses of eight courts. Again, in the second quarter from July to September 2020, the magistrates’ court, central court and six other local courts in Mohale’s Hoek had to share M18 265, 14.

The first and second quarter allocations for the last financial year translated to a measly average of M2349, 13 and M2283, 13 per court respectively.

Not surprisingly, with such paltry allocations, most courts have either stopped operating or are experiencing serious challenges offering services to the public.

In Just last year, Law and Justice Minister Professor Nqosa Mahao alluded to the problem saying his countrywide tour had revealed that most courts were struggling due to shortages of human and material resources as a result of underfunding by the government.

While in the 2020/21 financial year, the entire judiciary received M136 million, the figure has gone down to M113, 3 million for the upcoming 2021/22 financial year according to Minister of Finance Thabo Sophonea’s budget estimates presented in parliament last month.

Like Adv Mafaesa, Development for Peace Education (DPE) Director, Sofonea Shale, believes the court crises should be blamed on successive governments’ failures to prioritise critical institutions when drawing up the budget and allocating funds.

He said a dysfunctional judiciary which failed to provide justice to its citizens could only lead to instability in the country.

“Successive governments have failed to consider the national priorities when drawing up the budget. Key institutions like the judiciary are allocated low budgets that only allow them to continue existing but are not enough for them to function well.

“The country needs proper budgeting. We should start by having a policy dialogue of all key stakeholders to discuss the budget annually before it is drawn up. The dialogue should clearly identify the institutions that need to be prioritised and the judiciary is one such key institution.

“When justice is properly administered then we are likely to have a stable nation but where there is no justice there is no peace. People go to court to seek justice for the wrongs they would have suffered. We can only have peace and stability when we have a well-functioning justice system. A well-functioning justice system is only possible with adequate funding from central government,” Mr Shale said.

Southern Region Chief Magistrate Manyathela Kolobe concurred, saying the underfunding of the judiciary had paralysed the operations of the lower courts. He accused successive governments of 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.

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