Mohalenyane Phakela / Nat Molomo
MAGISTRATES have embarked on their second strike action in less than a year, a move that has paralyzed justice delivery in the lower courts.
The magistrates, who are unhappy with the government’s failure to address their long-standing demands for higher salaries and better working conditions, have also written to Acting Chief JusticeMaseforo Mahase, asking her to urgently convene a constitutional court sitting to adjudicate over what they say is “the unconstitutional scenario” in which they are treated as civil servants in violation of the separation of powers edict between the three arms of government; the executive, the legislature and the judiciary.
Lesotho’s 50 plus magistrates have been on a go-slow since April 2 2019, bringing the lower courts to a virtual standstill. They first launched similar action in July last year demanding better working conditions. Apart from their paltry salaries, the magistrates don’t get paid any allowances like transport, telephone, security and responsibility allowances. They particularly worry about their lack of security as they feel exposed to hard core criminals who appear in their courts yet they have to share public transport and living areas with the same criminals.
The magistrates are particularly livid with Justice and Correctional Services Minister Mokhele Moletsane whom they accuse of reneging on commitments to address their grievances. They accuse the minister of not giving them the feedback from cabinet by the promised date of 28 January 2019 over their request to be each paid a M3000 responsibility allowance. The chief justice is currently paid a M5000 responsibility allowance while all the other judges get M4000. The magistrates are paid nothing but it is understood that the Public Service Commission and the Remuneration and Benefits Board had recommended that they all be paid a flat M3000 each in responsibility allowances, regardless of class. The magistrates interviewed this week, on condition of anonymity, say Public Service Minister Joang Molapo and Mr Moletsane had promised to table this request to cabinet and report back to them by 28 January 2019 but this had not happened, prompting them to opt for strike action.
“We are fed up. I am personally fed up. This government does not take us seriously…We have no option but to strike back,” said one magistrate.
In response, Mr Moletsane recently told the Lesotho Times that magistrates were civil servants and should not expect to be accorded the same treatment as judges and others who hold statutory positions. Mr Moletsane also said it was incumbent upon the magistrates to ensure their security and avoid being “all over the place in public bars and other dangerous places”.
Beginning on 2 April 2019, the Lesotho Times observed that the Maseru Magistrates’ Court were generally empty and cases were not being heard.
Lesotho Correctional Services (LCS) trucks, which usually transport suspects to the courts for remand hearings have not been coming since the go-slow started last week. Those who are out on bail and attending remand sessions from home have also not had much joy as they have been coming to merely sit at the court premises without anyone explaining to them what was happening. The few cases that have been attended to have been heard in chambers and not in the open courts as in normal situations.
This is the second time in less than a year that the magistrates have resorted to industrial action to force the government to act on their demands. Last July, a similar country-wide go-slow strike action by the magistrates paralysed the operations of the lower courts.
At the time the magistrates complained about what they said were “our shocking poor salaries and benefits”.
The magistrates further said their low salaries and benefits were “extremely depressing and do not promote the commitment and urge to go the extra mile”.
“Not only are the salaries and benefits completely not befitting of judicial officers, they are also an embarrassment to us. Because of our meagre salaries most of us do not have our own vehicles and we are forced to rely on public transport. This could culminate in deadly consequences (because some criminals who appear before the magistrates use the same public transport).
“Magistrates do more work than the High Court judges yet their salaries are much lower than those of their counterparts. These grievances have been tabled before various authorities including the current administration for more than a decade but have still not been given the attention they deserve.
“In terms of section 118(3) of the constitution…the executive is mandated to assist the courts to maintain their independence, dignity and effectiveness. However, there is very little support we get from government in this regard,” the Judicial Officers Association of Lesotho (JOALE) stated in its letter to Prime Minister Thomas Thabane.
This time the magistrates are angry with Justice Minister Moletsane who they say has “deserted” them despite promising to address their grievances.
They said Mr Moletsane had promised to give them feedback from the cabinet regarding their grievances by the end of January this year and when he did not do so, they wrote to him to inquire about the matter.
One of the magistrates, who requested anonymity, told this publication that “the Minister of Justice promised us decision at the end of January but when the time came, he dodged us and we subsequently wrote to him to inquire about our issues”.
“However, we only learned from his radio interview that the minister would no longer be meeting us and that he had decided to discuss our problems with the Chief Justice instead. We then contacted the Acting Chief Justice (‘Maseforo Mahase) and she denied any knowledge of our concerns.”
When asked about the countrywide go-slow action, JOALE president, Magistrate Peete Molapo, was coy on the issue. He said they were currently engaged in meetings with magistrates “to discuss how we move forward”.
“It is true the minister deserted us but we are trying to continue to work even under these dire conditions which we thought would be addressed,” Magistrate Molapo said.
This publication has also seen a letter which JOALE secretary, Magistrate Masupha Kao, wrote to Justice Mahase last Friday, demanding that she intervenes in their dispute with the government.
In that letter, JOALE demanded that Justice Mahase convenes the Constitutional Court to adjudicate over what the magistrates consider to be an “unconstitutional scenario” wherein they are considered to be and treated as civil servants instead of judicial officers under the separation of powers constitutional doctrine to guarantee their independence.
They insist that their treatment as civil servants and dependence on the government for salaries and other benefits, albeit elusive ones, is unconstitutional in that it affects the independence of the judiciary.
“Magistrates’ remuneration and other benefits are determined by the executive arm of government through its Ministry of Public Service and it has always been JOALE’s considered view that this is not only unconstitutional but a mockery of the Kingdom’s constitution and erosion of the same independence afforded to courts by the constitution.
“Almost a year ago magistrates, through JOALE, engaged the Ministers of Justice as well as Public Service regarding members’ financial welfare after an outcry by magistrates that their salaries were not only a joke but an insult to them given their responsibilities. Consultations were made and committees formed and magistrates were informed that the last step was for the cabinet to endorse the results (of the consultations).
“Informative meetings were agreed upon between the Minister of Justice and the JOALE executive for purposes of transparency and information sharing. However, on the set dates JOALE executive members went to the minister’s office only to find his secretary who had no information. JOALE then wrote to the minister and while a reply was awaited, it was to the dismay of the magistrates when the minister was heard over one local radio station indicating that he would no longer deal with magistrate but he will deal with them through the Chief Justice only.
“We reiterate that the very existence and purpose of Magistrates’ Courts is under threat and we feel it is Your Ladyship (Justice Mahase) who is best suited to finally put to rest this centuries’ old unconstitutional administrative setup which not only erodes public confidence in the courts but also undermines the supreme law. It is Your Ladyship who can see to immediate setup of Constitutional Court (sic) to hear and determine this matter which is very important not only to the effective functioning of courts but also to the reinforcement of constitutional concepts of separation of powers and independence of judiciary as some of the principles underlying our constitution,” part of JOALE’s letter to Justice Mahase states.
JOALE further asks Justice Mahase to reopen the negotiations with Mr Moletsane as the magistrates believe an amicable solution could be reached quickly since the negotiations to address their concerns had already gone some distance since last year.
A former magistrate with more than 20 years of legal experience, Advocate Khati Mahase, told the Lesotho Times that the magistrates’ grievances “were understandable and long-standing”.
“I became a magistrate in 1998 and when I left in 2001, the magistrates were already fighting to get these same grievances addressed. These include safety and security as they stay in rented flats, where they live with the very people they have to try in the courts.
“Without a robust, independent and satisfied judiciary, there is no way this country will combat crime,” Adv Mahase said.
On his part, Mr Moletsane insisted that magistrates were civil servants and should not expect to be accorded the same treatment as judges and others who hold statutory positions. Mr Moletsane also said it was incumbent upon the magistrates to ensure their own security and avoid patronizing what he called dangerous places like bars where they could expect to encounter the same criminals who would have appeared before them.
“There were issues raised by the magistrates which are specific to them including concerns about their safety. Those that were mostly complaining are the Maseru magistrates because in the districts, resident magistrates and district administrators are given priority when it comes to government housing. However, there are many magistrates in Maseru and not all of them reside in the government houses which are allocated to civil servants.
“But generally magistrates do not qualify for government houses. The law is clear that the 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 positions should be allocated houses and magistrates do not qualify as they are on the level of civil servants.
“However, we negotiated with the Ministry of Public Service to prioritise magistrates when allocating vacant government houses to ensure that their safety is not compromised. While this is not a legitimate expectation, it should be understood that this is being done because of the sensitivity that comes with their job. It should also be understood that this process will not be an overnight one because we cannot evict people (already living in those houses) to make way for the magistrates.
“In addition, it must be understood that their 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. Security comes with responsibility and they should conduct themselves in ways that do not compromise their security. I do not expect to see magistrates all over the place in public bars and dangerous places. I am not saying they should not have social lives but they should be responsible. I have bodyguards as a minister but I cannot be seen going to dangerous places that would compromise my security. So, it is also an issue of responsibility because I do not think its practical to allocate bodyguards to every magistrate,” Mr Moletsane said.