- say they have lost hope in govt ever resolving their decades-old plight
Nat Molomo | Mohalenyane Phakela
THE gloves are officially off after the country’s restive magistrates sued the government for failing to adequately remunerate them and guarantee their independence from the executive.
In their stinging unprecedented Constitutional Court application yesterday, the magistrates accuse the government of destroying their “morale, enthusiasm and passion” through its failure to adequately remunerate them and to allocate sufficient funding to enable them to discharge their duties.
The Judicial Officers Association of Lesotho (JOALE) filed the application on behalf of the magistrates. JOALE is an umbrella organisation representing judges, magistrates and other judicial officers. The government, Minister of Justice and Correctional Services, Minister of Public Service, Minister of Finance, Public Service Commission (PSC), Judicial Service Commission (JSC) and the Attorney General are the first to seventh respondents respectively.
Yesterday’s lawsuit is the culmination of several years of the magistrates’ fruitless efforts to get the government to increase their salaries and benefits as well as recognise them as constitutionally distinct from civil servants. In July 2018 and again in April 2019, the magistrates took the unprecedented step of staging go-slow strikes to protest what they said were “our shockingly poor salaries and benefits”.
The magistrates also complained of lack of benefits including transport and housing allowances which forced most of them to rent what they call dilapidated houses and use unsafe public transport. They only called off the job actions when the government promised to address their grievances.
But after months of waiting in vain for feedback and concrete action, their patience has finally worn off and they have taken the unprecedented step of collectively suing the government.
In their court papers filed yesterday, the magistrates say they have “lost hope in the government ever resolving their five decades-old plight” and it is “more likely that another decade will go by without the government meaningfully addressing the grievances of the magistrates”.
The magistrates said their low salaries and benefits were “extremely depressing and do not promote the commitment and urge to go the extra mile”.
“Lesotho’s judiciary, particularly the magistracy, has been at the receiving end of the systemic general lack of funding by the government in terms of infrastructure, resources, salaries and remuneration. The magistracy operates around the country mostly in dilapidated buildings and squalid work conditions which can best be described as a scar to the human conscience.
“Many of the magistrates resort to loans and financing by financial institutions. While this may seem a temporary relief, the long term ramifications are spiralling the magistrates into any abyss of never-ending debt, frustration and dejection. The best brains and talent migrate from the magistracy to join private practice or to the public service where upward mobility through the grades is in many cases a partisan reward,” JOALE president and Maseru resident magistrate, Peete Molapo, states in his supporting affidavit to the JOALE court application.
The magistrates contend that their classification as civil servants not only ensures that they are lowly paid but “creates the public perception that they are at the beck and call of the executive” thus violating the constitutionally enshrined principle of judicial independence.
The salary grades for civil servants range from Grade A for the lowest paid up to Grade M for the highest paid. The entry level for magistrates is at Grade F. At Grade K, a chief magistrate is the highest paid of the magistrates but his salary is only equivalent to that of a deputy principal secretary. He does not enjoys any benefits except for a mobile phone and airtime.
The government secretary, who is in Grade M, earns much more than a chief magistrate and is entitled to benefits which include a M500 000 interest free loan, a government vehicle, a mobile phone and airtime, a house and furniture.
In addition to his salary, a principal secretary, who is in Grade L, enjoys similar benefits to those of the government secretary.
It is this classification as civil servants and the resultant poor salaries and lack of benefits which has compelled the magistrates to approach the Constitutional Court.
“Since 1993, whenever members of the magistracy are appointed by the 6th respondent (JSC), the terms and conditions of employment including the salary and remuneration and other benefits are determined and prescribed by the 4th respondent (minister of Justice).
“Members of the judiciary (magistracy), notwithstanding that they are not part of the civil service…are then designated to existing job grades and salary grades meant for the civil service,” JOALE states in his affidavit.
Among other things, the magistrates want the Constitutional Court to order that “the subordinate courts (magistracy) as part of Lesotho’s judiciary, are independent and the 1st respondent (government) is constitutionally obligated to support the magistracy’s freedom, independence, integrity and effectiveness…”
They also want an order declaring that “the job and salary grading of the magistrates of the subordinate courts on the existing job and salary grading structure in the civil service is inconsistent with the independence, integrity, impartiality and effectiveness of the judiciary and therefore unconstitutional”.
“The government has failed in its constitutional duty to support the judiciary under section 118(3) of the constitution by neglecting, failing and refusing to establish an independent salaries and remuneration commission … which will offer fair and appropriate…salaries, terms and conditions of employment of members of the judiciary consistent with their judicial roles.”
JOALE also wants the court to nullify section 14 of the Public Service Act which empowers the minister of public service to determine the salaries of magistrates.
According to Mr Molapo, magistrates constitute a separate class from the civil service and ought to be treated as such.
“The non-recognition of the appropriate value, utility and importance of the judicial role of the magistrates from the appointment stage has a logical consequence of violating the constitutional structural separation of powers and the independence of the judiciary.
“The role of magistrates as judicial officers is to perform a judicial service which is not the case with the executive and support staff (in the civil service). Magistrates exercise the sovereign power of the king. Placing magistrates on par with the administrative executive (in the civil service) devalues the judicial role and it is the fertile breeding ground for disgruntlement, low morale and ineffectiveness in the subordinate courts.
“It inherently politicises the judiciary and sows seeds of discomfort and disquiet in the magistracy, with debilitating effect on the public confidence in the magistracy, the integrity and independence of the magistracy and the administration of justice.”
JOALE further states that the magistrates have been crippled by lack of adequate funding in the performance of their duties.
“Magistrates perform an important judicial function but many of them reside in rented houses where they pay for their own renting. Magistrates do not have government sponsored vehicles and many who live in metropolitan cities have to share community transport much to the bewilderment of the public and in particular those who they stand to serve or have served in the courtrooms.
“In certain instances, magistrates who have to conduct inspections as part of their judicial role have to be ferried to those places by the litigating parties. A magistrate’s salary is a meagre measure which does not normally carry them through a month and generally they are looked down even by those members of the legal profession who are in private practice.
“The government should have placed sufficient resources…at the disposal of the subordinate courts so as to effectively discharge their judicial role and function to defend its (magistrates’) independence.”
As a consequence, Mr Molapo said the magistrates had lost hope in the government’s ability and willingness to resolve their longstanding grievances.
“The morale, enthusiasm and passion of the magistrates have ebbed and almost dying out as they feel that they are continuously being neglected and undermined by the political branch of the state.
“The public confidence in the subordinate courts has dwindled as anecdotal accounts and perceptions of corruption and maladministration continue to be given and debated on local radio stations and social media platforms,” Mr Molapo states in the court papers.