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Our justice institutions are collapsing: Law and Justice PS Sello

IN September this year, Prime Minister Moeketsi Majoro appointed Mr Lebeko Sello as principal secretary (PS) for Law and Justice. The position fell vacant after the expiry of the contract of the previous incumbent, Retired Colonel Tanki Mothae.

Since taking over, Mr Sello has been working hard alongside Law and Justice Minister, Professor Nqosa Mahao, to implement policy changes to improve the justice delivery system as well improve working conditions in various institutions which fall under the ministry including the Lesotho Correctional Service (LCS).

This week Lesotho Times (LT) Senior Reporter Pascalinah Kabi sat down with Mr Sello to find out the progress and the challenges experienced so far as the ministry sets out to achieve its aims. Below are excerpts from the interview: 

LT: Please provide an overview of the work you have done to accomplish your aims. 

Mr Sello: Law and Justice Minister Prof Mahao recently outlined an action plan with a heavy focus on the enactment of new laws. The minister believes that the following laws are outdated and no longer address today’s challenges: The Ombudsman Act; the Directorate on Corruption and Economic Offences (DCEO) Act; Judicial Administration Act; Bail Law as well as the Independent Electoral (IEC) Act.

Others that need to be amended include the Human Rights Bill; Law Reform Bill; Witness and Protection Bill; Referendum Bill; the Lesotho Correctional Service (LCS) Bill of 2020 as well as the consolidation of electoral laws.

Some of these laws like those concerning the ombudsman, DCEO and Director of Public Prosecutions had to be reviewed because the minister feels that the manner in which heads of these institutions are appointed rendered these offices irrelevant or unable to effectively discharge their mandates. These are powerful institutions that attract public attention yet no one really knows how their heads are appointed. Sometimes people wake up to hear that the heads of these institutions have been removed and new ones appointed in their place.

People do not know how these processes are done. This speaks to the issue of accountability. Also, when the state demands accountability from such institutions, they raise the issue of their independence from the state. It is true that they have a measure of independence but issues of accountability must be explicitly addressed to ensure that people in those institutions account for what they are paid to do.

On the issue of the bail law, I think you are a witness to the moaning of Basotho regarding how bail is granted in this country.

A person can record an audio message threatening to kill a fellow human being and state that they will be out on bail the next day. During one of our countrywide tours, we were told that a man met an old man walking with his two daughters. He killed the old man, raped the daughters and the suspect was arrested. On the day that the old man was being laid to rest, the suspect was out on bail and attended the funeral. Going there could have provoked families who could have easily decided to get revenge by killing the suspect thus starting a vicious cycle of murders and counter-murders. We seriously must rethink the bail law with regards to the circumstances in which bail can be granted or denied.

We also have to amend the laws concerning the IEC. We have experienced problems because the law did not cater for situations where there are no commissioners in office. The IEC Act clearly states that the director of elections is appointed by the commissioners but this year the contract of the director of elections expired at a time when there were no commissioners in office. The post is still vacant. We are looking at amending the laws to address such challenges.

Though at different stages, the processes of amending or enacting these laws are underway. For instance, the Human Rights Bill will soon be tabled in parliament and passed into law.

LT: What other challenges affect the justice system? 

Mr Sello: The minister had told the media that the ministry was planning to have all these laws concluded by the end of December this year. We are busy working on all the laws but I cannot confidently say that we will meet the December deadline. We made commitments but we experienced some challenges. For instance, our laws are drafted by the Office of Parliamentary Council (OPC) and that office is overwhelmed as we speak.

In addition to its own workload, it has to work on bills brought to it by the Law and Justice minister and the prime minister. It has to work on the multi-sector reforms. This is a huge workload. So, I think we will not meet the December deadline for finalising all the laws we have prioritised.

The minister and I have already visited Mafeteng, Qacha’s Nek, Mohale’s Hoek, Leribe, Mokhotlong, Thaba-Tseka and we have covered a bigger part of the Maseru district as part of fact-finding mission on the state of the justice system in the country.

Only Berea, Quthing and Butha-Buthe are yet to be visited.

What we have found is that there is no longer any justice delivery in this country because for the wheels of justice to fully function, institutions tasked with the responsibility of service delivery must be fully capacitated.

When you go to the local courts which serve the majority of our population, you will find that there is no office equipment for the staff to do their jobs. The outlook of our courts is demoralising. Buildings are dilapidated — doors and windows are broken and the roofing is leaky. I must thank civil servants working under those conditions because our courts are demoralising.

People approach the courts for legal recourse but the state of our courts do not give any hope to them. There is no water, electricity and courts in the mountains have also complained of harsh weather conditions. They complain of the cold and they do not have resources to warm the court buildings.

When you enter offices, there is no equipment such as stationery.

Where some courts had three magistrates five years ago, today they have one magistrate while some do not even have a single magistrate. Where there is no magistrate, we have no option but to close that court.

One of the most important things that Basotho are complaining about is the allocation of land. For instance, the power to allocate land has now been given to the magistrates yet the people most affected by land disputes are ordinary citizens in the remote villages.

Some of these villages are so far from the urban centres where the magistrates’ courts are located. For example, there is a hard to reach place called Thaba-Ntšo, in Mokhotlong. Staffers inform us that majority of cases brought there involve land disputes. The magistrate’s court in Mokhotlong is far and people end up abandoning their cases. Eventually people resolve disputes by assaulting each other. This is prevalent in the highlands.

The situation is no better in the magistrates’ courts themselves due to underfunding.

For example, the Qacha’s Nek magistrate tells us that from 2013 to 2015, their quarterly subvention for running the courts in that district was M150 000. This means they were getting M600 000 per year. They also had a staff complement of three magistrates and support staff.

Five years later now in 2020, the magistrate tells us that their allocation has been slashed to just M25 000 per quarter to run all the Qacha’s Nek courts. They have rented two buildings as courtrooms and they each pay M9000 per month as rent. Do your mathematics and see how we function under these conditions.

As if that is not enough, they now have just one magistrate or none at all when they had three in 2015. Where there is no magistrate, we have no option but to close that court.

This tells us that government is gradually withdrawing its financial support from the judiciary and that has negative impact on the administration of justice.

Clearly the delivery of justice has regressed in this country. The backlog of cases in the courts is a result of serious underlying administrative problems. We are trying to solve these issues by reviewing existing laws. It is unfortunate that the world is dealing with the economic impact of Covid-19 but these challenges in the judiciary require that the (law) ministry must have a special engagement with the government.

LT: Apart from the courts, what else did your tour investigate? 

Mr Sello: The tour also covered the correctional service institutions. We learnt from these tours that there is a significant infrastructure investment in the prisons. There are ongoing construction activities at the Mohale’s Hoek, Leribe and the Maseru Central facilities. Though we are investing in infrastructure, there are serious challenges that we picked from our discussions with the inmates. It is a worrying situation because hunger tops the list of the complaints raised by the inmates. It is heart-breaking to listen to a young middle-aged man complaining of being starved; they suffer from hunger related diseases. This was confirmed by clinicians attached to the correctional facilities.

They are malnourished. Clinicians say inmates lack iron and present with all hunger related diseases. They also complain of being detained for years without having their day in court. In some cases, there are no magistrates to preside over their cases.

We had to sit down with the Acting LCS Commissioner Chabana Majara. We told him that a big chunk of the ministry’s budget goes to the LCS and we strongly feel that there are certain liabilities that he needs to deal with to ensure self-sufficiency within the LCS. It has to deal with the hunger issue. The LCS must now engage in massive farming projects to avoid buying food. There is a very good poultry model that we saw in Mokhotlong, they must replicate that in all their facilities and win the fight against hunger in the correctional facilities. Mokhotlong produces most of its food and one wonders why the LCS has not replicated this model at all its facilities.

LT: What is the budget for feeding inmates? 

Mr Sello: I do not have the figures readily available but it is a significant figure. The LCS takes a big chunk of the ministry’s budget and if my memory serves me well, it (the LCS) spends 30 percent of its budget on food only.

LT: What is the situation with the National Reforms Authority (NRA) and the reforms process? 

Mr Sello: As the responsible ministry, we can confidently state that we have given the NRA most, if not all of what they needed from the ministry. A salary structure for the secretariat has been put in place and office space has already been identified at the Lesotho National Development Corporation (LNDC) premises in Maseru. Now, the most important thing is for the NRA to deliver the reforms and the question is, will they be able to deliver between now and the end of August 2021? We must conclude the reforms by August 2021.

The bone of contention between the ministry and the NRA was when the minster raised concerns that it did not appear the NRA was not going to meet the August 2021 deadline and he demanded that they produce a workplan indicating how they would meet the deadline.

That angered the NRA but they just had to produce the workplan. They eventually submitted the workplan but it needs to be reworked because everything must be done between now and August 2021. The original NRA workplan has items that go beyond August 2021 but these must be done within the deadline.

The head of the SADC facilitation team to Lesotho, Retired Justice Dikgang Moseneke, also stressed the need for the reforms to be concluded by end of August 2021. He talked tough on the deadline.

Lesotho is not alone in this reforms process. SADC, the European Union (EU), United Nations (UN) and Lesotho’s other development partners have a keen interest in the reforms. It was agreed that the reforms must be concluded by end of August 2021. Even the NRA’s terms of reference are valid until end of August 2021. In the event that the NRA has not concluded the reforms by that time, their tenure can only be extended by six months. We must tighten the screws and conclude the reforms by the set deadline otherwise our partners will pull out and Lesotho will not be able to finance the reforms on its own.

LT: Let us talk about the IEC. The Council of State met two weeks ago and appointed three IEC Commissioners. What happens now?  

Mr Sello: The Council of State is seized with IEC issues. However, we have been informed that the processes of appointing commissioners have been concluded and all that is remaining is agreeing their contracts. We have been assured that this will be prioritised because there is a lot of work waiting for the commissioners at the IEC. The former IEC Director of Elections, Mphasa Mokhochane, is the new chairperson and Karabo Mokobocho and Tšoeu Petlane are the two other commissioners.

LT: What work awaits the commissioners at the IEC? 

Mr Sello: The major assignment is to hire a director of elections so that she/he can help them pick up the pieces. The IEC has been through a turbulent period without commissioners. They need to engage a highly qualified and competent individual to revive that institution. The commissioners must also delineate the electoral constituencies as well as hold by-elections where there are vacancies.

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