Judiciary in crisis: Mosito


…only one criminal case on the roll of the Court of Appeal

Pascalinah Kabi

THE recently reinstated president of the Court of Appeal, Kananelo Mosito, says the criminal justice system is in a crisis and apologised to the nation for the judiciary’s failure to ensure the efficient delivery of justice thus compromising the rights of citizens.

Justice Mosito promised that the apex court will swiftly move to uphold the rights of convicts in prisons by giving them the opportunity to appeal against the verdicts of the lower courts.

He said convicts were left to languish in prison because their appeal cases were not transcribed for hearing by the Court of Appeal. He said so far there was only one criminal case on the roll of the current session of the apex.

Justice Mosito said this during the official opening of the Court of Appeal on Monday.

The official opening came almost two years after the apex court had become dysfunctional due to long-drawn out legal battles over who should be the court’s president.

Justice Mosito was finally sworn in a fortnight ago following a landmark Court of Appeal ruling which nullified a February 2018 Constitutional Court ruling which had set aside his 1 August 2017 his re-appointment as head of the apex court.

The Constitutional Court judgement was handed down after an appeal by four lawyers, namely, King’s Counsels Motiea Teele, Zwelakhe Mda, Karabo Mohau and Attorney Qhalehang Letsika.

The four lawyers had appealed against his reinstatement on the grounds that a 2016 tribunal that had been set up by the then Pakalitha Mosisili regime had found that Justice Mosito was unfit to hold office because he had evaded paying taxes.

However, the Court of Appeal bench ruled that Justice Mosito was validly reappointed as President of the Court of Appeal with effect from 1 August 2017.

Addressing a full parked court room on Monday, Justice Mosito said the criminal justice system was a pressing concern that needed to be urgently addressed.

“There can be no dispute that the (criminal justice) system is in crisis. Not the judiciary, not the Director of Public Prosecutions, not the police – the whole system. A brief look at the roll of this court will illustrate the point. There is only one criminal case on the roll.

“The reason for this is that there seems to be some general laxity that once people have been sentenced by the High Court, they are ignored to languish in prison without due diligence being undertaken to transcribe their records for hearing by this court,” Justice Mosito said.

He said the failure to transcribe records of court judgements was not new as he had first noticed it when he first assumed office in 2015.

“Then concern is more pressing now that there are some convicts on death row. If nothing will have been done by April 2019 when this court sits for the April session of the Court, this court will have no other alternative but to uphold the rights of those subjects purely on the basis of their notices of appeal.

“A strong and effective judiciary guarantees safety and security. Another important and related issue is the ability of the judiciary to deliver on its mandate to the ultimate benefit of the court’s customers and the rule of law.”

Justice Mosito said that to operate effectively and engender public confidence, the courts required effective leadership and management at all levels that is complemented by partnerships and collaborations with all stakeholders as well as awareness of the needs of their customers. He also underscored the need for effective internal and external communication.

Justice Mosito further apologised to the nation for the judiciary’s failure to live up to expectations.

“I call upon all stakeholders in the administration of justice to work together for the good of the nation. The nation is hereby assured that there shall be effective, speedy, quality and impartial delivery of justice.

“Every legal practitioner will be embraced; every argument will be considered. We shall continue to recognise the right of everyone to fight for his or her rights,” Justice Mosito further said.

The Attorney General, Haae Phoofolo, echoed Justice Mosito’s sentiments about the crisis in the judiciary, saying the judiciary should strive to protect the rights of every individual.

He said there was an unprecedented crisis in the judiciary when the Court of Appeal failed to sit for almost two years, adding that the re-opening of the apex court was a victory for the country’s 2.1 million citizens who had been deprived of justice.

“The real reason why this country has been faced with the ongoing crisis these past few years is that the institutions of oversight over the judiciary and the legal profession are clearly not fully capacitated to meet the dynamic of accountability. The long-held and romantic proposition that the principle of judicial independence is sacrosanct without the dynamic of judicial accountability is dangerous.

“In the same way, if the legal profession through its regulatory body – the Law Society – does not have a well-equipped and well-oiled secretariat that takes to task errant lawyers, then the system will most definitely be volatile as is the case and as has always been the case,” Advocate Phoofolo said.

He said life was not always about legal principles gathered from legal literature and precedents but it was also about being human and this meant treating everyone with respect and dignity.

“The real justice that all of us yearn for is not found in books and judgements of even the most seasoned scholars and jurists but peculiarly found in the depths of our hearts. So as their Lordships and their Ladyships sit in this court, they must remember their standing moral obligation of working relentlessly towards attaining justice for all those who appear before them as the last port of call,” Adv Phoofolo said.

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