Chief Jus­tice lays down the law

. . . wants govt to en­sure a con­ducive en­vi­ron­ment for an ef­fec­tive ju­di­ciary

Lesotho Times - - News - Lekhetho Nt­sukun­yane

CHIEF Jus­tice Nthomeng Ma­jara has warned gov­ern­ment to en­sure a con­ducive en­vi­ron­ment if the ju­di­cial sys­tem is to be ef­fec­tive.

Ad­dress­ing del­e­gates to Mon­day’s of­fi­cial open­ing of the 2015 ju­di­cial year, Jus­tice Ma­jara — who as­sumed of­fice on 28 Au­gust 2014 to be­come the coun­try’s first woman to oc­cupy the post — em­pha­sised the ju­di­ciary should never be com­prised be­cause of lack of re­sources, adding that it must not be in­debted to any in­di­vid­ual but the coun­try’s con­sti­tu­tion.

“I wish to re­mind Ba­sotho that it be­hoves on all of us to jeal­ously guard and pro­tect the in­tegrity, dig­nity and author­ity of our courts, start­ing with the lead­er­ship in gov­ern­ment and that of all po­lit­i­cal par­ties,” Jus­tice Ma­jara said.

“Politi­cians, sup­port­ers, the me­dia, legal prac­ti­tion­ers, ju­di­cial of­fi­cers, law-en­force­ment agen­cies, se­cu­rity forces and ev­ery mem­ber of the public are all un­der the con­sti­tu­tional duty to re­spect, strengthen and pro­tect the rule of law, for with­out it, the con­se­quences are too ghastly to con­tem­plate.”

As an in­sti­tu­tion, she said, the ju­di­ciary “is not, and should never be be­holden to any­one but the con­sti­tu­tion.”

“Judg­ments and de­ci­sions of the courts must be apo­lit­i­cal and free from bias at all times,” Jus­tice Ma­jara added.

“Ju­di­cial of­fi­cers are not in this of­fice to pur­sue any­one’s agenda. They are cer­tainly not here to make pop­ulist de­ci­sions. Our role is to up­hold the law and dis­pense jus­tice to all with­out fear, favour or prej­u­dice.

“Abus­ing and in­sult­ing the ju­di­ciary, call­ing them names and claim­ing or as­crib­ing them to any po­lit­i­cal party or for­ma­tion is very wrong, not to men­tion danger­ous and must never be coun­te­nanced, let alone nor­malised.

“If any­one is un­happy or dis­sat­is­fied with a de­ci­sion or judg­ment of the court, they must fol­low due process be­cause that is ex­actly the rea­son why the courts are hi­er­ar­chi­cal in na­ture.

“Ours is a self-cor­rect­ing in­sti­tu­tion where ju­di­cial de­ci­sions are sub­ject to scru­tiny and cor­rec­tion from the low­est to the most su­pe­rior court of the land.

“It is there­fore, very mis­chievous for any­one to try and tar­nish the im­age of the courts and bring it into dis­re­pute through un­fair, biased and of­ten­times un­en­light­ened crit­i­cism sim­ply be­cause they hap­pen not to like par­tic­u­lar de­ci­sions.”

How­ever, the Chief Jus­tice said for the ju­di­ciary to be ef­fec­tive and main­tain its in­de­pen­dence and dig­nity, gov­ern­ment had to ful­fill its con­sti­tu­tional duty of pro­vid­ing it with the nec­es­sary re­sources.

“This im­por­tant pro­vi­sion casts a sa­cred duty upon the gov­ern­ment of Le­sotho, which should never be sac­ri­ficed at the al­tar of pol­i­tics or any other cause,” she said.

“Presently, Le­sotho’s ju­di­ciary needs more of­fi­cers, ad­di­tional courts es­pe­cially in peri­ur­ban ar­eas, sup­port staff and other re­sources that go with it.

“With all due cog­ni­sance and con­sid­er­a­tion of the fi­nan­cial con­straints Le­sotho is presently fac­ing, I still wish to be­seech the Prime Min­is­ter, Ex­ec­u­tive and Par­lia­ment to al­ways re­mem­ber that the bud­get ceil­ing for the ju­di­ciary should not be de­cided solely upon or con­strained by the fact that the in­sti­tu­tion does not gen­er­ate rev­enue aside from mea­gre fines, rev­enue stamp col­lec­tion and other fees.

“Jus­tice is lofty, noble and ideal in a democ­racy that its value should not be mea­sured in mon­e­tary terms or its needs gauged in ma­te­rial terms.

“Jus­tice brings peace and sta­bil­ity which are the bedrock of safety and pros­per­ity, amongst oth­ers.”

The Chief Jus­tice also called on lawyers to as­sist the courts by main­tain­ing the high­est stan­dards of pro­fes­sion­al­ism.

“Legal prac­ti­tion­ers must show ut­most re­spect for the courts at all times by fol­low­ing rules and pro­ce­dures, pre­par­ing prop­erly for the pros­e­cu­tion or de­fence of their cases, pre­sent­ing well-re­searched and ar­tic­u­lated ar­gu­ments, giv­ing proper guid­ance, but above all, proper coun­sel to their re­spec­tive clients to ac­cept and re­spect de­ci­sions and judg­ments and to take ap­pro­pri­ate steps when­ever they are not sat­is­fied.

“This wor­ri­some phe­nom­e­non of in­sult­ing the courts and in­di­vid­ual ju­di­cial of­fi­cers and ac­cus­ing them of all man­ner of mis­de­meanour must be a thing of the past.”

Jus­tice Ma­jara also urged the me­dia to ex­er­cise its free­dom to in­form, ed­u­cate and en­ter­tain the public “re­spon­si­bly, truth­fully, fairly and pro­fes­sion­ally”.

She con­tin­ued: “It is a fact that the me­dia can make or break, hence if they sac­ri­fice their pro­fes­sion­al­ism and fail to re­port or pub­lish truth­fully, fairly and hon­estly, they can be part, if not the root cause, of na­tional, re­gional or in­ter­na­tional catas­tro­phes.”

Like­wise, mem­bers of the public have the re­spon­si­bil­ity to “learn and ap­pre­ci­ate” how the law and courts func­tion, she added.

“Pop­ulism and bias do not form part of an ef­fec­tive, fair, im­par­tial and in­de­pen­dent ju­di­ciary. Peo­ple must al­ways do their re­search first be­fore ped­dling un­founded al­le­ga­tions and dis­tort­ing ju­di­cial de­ci­sions in pur­suance or sat­is­fac­tion of their re­spec­tive pri­vate and of­ten self­ish agenda.”

Ju­di­cial of­fi­cers, she fur­ther said, had a con­sti­tu­tional duty to serve the na­tion “as com­pe­tently, dili­gently, fairly, pro­fes­sion­ally and speed­ily as is hu­manly pos­si­ble. Ju­di­cial of­fi­cers are public ser­vants whose salaries and other en­ti­tle­ments are paid by this na­tion whose ma­jor­ity live in ab­ject poverty.”

How­ever, Jus­tice Ma­jara also pointed out that ju­di­cial in­de­pen­dence goes hand-in-hand with ac­count­abil­ity.

“We are sub­ject to crit­i­cism be­cause it is through it that we are able to cor­rect our faults and short­com­ings and pro­vide bet­ter ser­vice to the public.

“Our con­duct must, there­fore, be pro­fes­sional and above re­proach at all times. Ju­di­cial of­fi­cers must earn the trust, re­spect and con­fi­dence of the na­tion they serve.

“They must not only dis­pense jus­tice but must be seen to be do­ing so. They must be wary not to ac­tively as­so­ciate them­selves with ac­tive pol­i­tics or openly de­clare their pre­ferred po­lit­i­cal par­ties or for­ma­tions. Their in­volve­ment in pol­i­tics must be limited to ex­er­cis­ing their con­sti­tu­tional right to par­tic­i­pate in elec­tions by cast­ing their votes.”

Mean­while, Jus­tice Ma­jara lamented the dire short­age of re­sources in the ju­di­ciary.

“The main High Court has seven judges on its per­ma­nent estab­lish­ment, who deal with all main­stream cases.

“There is also the Land Court which, un­til re­cently, has been a one-woman show in that all the land dis­putes were be­ing han­dled solely by Madam Jus­tice ’Mase­foro Ma­hase un­til the re­cent ad­di­tion of two Act­ing Judges, Messers Sakoane Peter Sakoane and Keketso Le­sihla Moahloli.

“Ide­ally, all three of them should be deal­ing ex­clu­sively with land cases. How­ever, due to a se­ri­ous short­age of judges when taken against the ex­tremely high rate of new cases, ev­ery now and again, cir­cum­stances de­mand that they lend a help­ing hand and as­sist with main­stream cases, not to men­tion that all High Court judges also deal with con­sti­tu­tional mat­ters which take up three judges at a time,” she said, adding there was press­ing need to in­crease the num­ber of judges.

“For in­stance, Botswana has a to­tal com­ple­ment of 27 High Court judges who serve al­most the same pop­u­la­tion size as us. It is, how­ever, pleas­ing for me to an­nounce that the gov­ern­ment has since promised to in­crease the cur­rent num­ber by at least five more judges.

“We await this with bated breath for although this will not be enough, it is sure to bring much needed re­lief.”

Jus­tice Ma­jara also noted the poor state of the coun­try’s courts.

“The Palace of Jus­tice and Court of Ap­peal build­ings, flag­ships and head­quar­ters of the ju­di­ciary, which are more than 10 years old, have been leak­ing to such an ex­tent that they have be­come un­safe for hu­man habi­ta­tion and stor­age of equip­ment, books, records and dock­ets.

“Dur­ing the rainy sea­son, the leak­ing roofs have caused dam­age worth hun­dreds of thou­sands of mal­oti to the struc­ture of the build­ing, fur­ni­ture, legal read­ing ma­te­rial and other valu­able prop­erty in the of­fices and court­rooms.

“Ba­sic re­sources such as sta­tionery, pho­to­copy­ing ma­chines, prin­ters and heaters have had to be sourced from our devel­op­ment part­ners for which we are grate­ful.

“With the mea­gre funds that we have in the re­cur­rent bud­get, we are sadly un­able to meet the en­tire costs of lay­ing-out a new roof to the Palace of Jus­tice. So far, we have only raised M250 000 of the M1 mil­lion we need for the pay­ment of the en­tire project.”

The Maseru Mag­is­trate’s Court build­ings, on the other hand, are also in an “aw­ful state of dis­re­pair” due to lack of funds for main­te­nance, Chief Jus­tice Ma­jara fur­ther said.

“It be­comes a night­mare to ren­der ser­vices to the de­serv­ing public. This is also a rel­a­tively new public build­ing which needs to be prop­erly main­tained.

“The Lo­cal and Cen­tral courts, in the out­ly­ing and far-flung ar­eas of the coun­try also lie in a ter­ri­ble state of dis­re­pair and in some ar­eas, we have been forced to op­er­ate from rented pri­vate homes that dou­ble-up as court­rooms, hold­ing cells, of­fices and res­i­dences for court of­fi­cials.

“Un­for­tu­nately, in ar­eas like Koro-koro, Kolo and Fika-le-mo­hala, where the courts have to op­er­ate from rented premises, this ar­range­ment con­tin­ues to take a huge chunk of our mea­gre bud­get for pay­ment of rentals.

Need­less to men­tion, this is not the most con­ducive and or ap­pro­pri­ate ar­range­ment for it places our court pres­i­dents and staff in close prox­im­ity with the public they must serve with im­par­tial­ity, which in turn is bound to cre­ate the per­cep­tion of a jus­tice sys­tem that is com­pro­mised and par­tial.

“Fur­ther, in places like Ha Ram­pai, Se­ba­pala and Mashai, the courts, staff hous­ing, of­fices and court­rooms are also in a com­plete state of dis­re­pair thereby com­pro­mis­ing and ham­per­ing ef­fec­tive de­liv­ery of jus­tice to those com­mu­ni­ties.

“With re­spect to Ram­pai Lo­cal Court, a re­port was made to the Hon­ourable Min­is­ter of Jus­tice that it had ceased op­er­a­tions be­cause be­sides its poor un­in­hab­it­able state, it also did not have a Court Pres­i­dent and Clerk of Court.”

The Chief Jus­tice also used Mon­day’s ad­dress to congratulate Dr Kananelo Everett Mos­ito (King’s Coun­sel) on his re­cent ap­point­ment as Pres­i­dent of the Court of Ap­peal. How­ever, the ap­point­ment has since been chal­lenged by At­tor­ney Gen­eral Tšokolo Makhethe in the Con­sti­tu­tional Court.

The gov­ern­ment, he ar­gues in his court pa­pers could not make such a cru­cial de­ci­sion as it was only in power on a care­taker ba­sis fol­low­ing the dis­so­lu­tion of par­lia­ment on 5 De­cem­ber 2014.

Ad­vo­cate Makhethe was among the many del­e­gates who at­tended Mon­day’s open­ing of the High Court year.

“Barely a fort­night ago, on 15 Jan­uary 2015, the na­tion wit­nessed yet an­other im­por­tant ju­di­cial ap­point­ment, namely that of Hon­ourable Dr Jus­tice Mos­ito KC, an out­stand­ing jurist, scholar and teacher of law, to the es­teemed of­fice of Pres­i­dent of the Court of Ap­peal.”

“I wish to take this op­por­tu­nity to congratulate Dr Jus­tice Mos­ito KC and wish him the best in his new ap­point­ment. I hope he will con­tinue to self­lessly serve this na­tion with the ex­cel­lence and in­dus­try he is renowned for.”

Chief Jus­tice Nthomeng MA­JARA in­spects the guard of hon­our dur­ing the of­fi­cial open­ing of the High Court on Tues­day.

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