…as Mahao vows to fix judiciary
Following the release of the Southern African Development Community Lawyers Association (SADCLA)’s report which comprises the challenges and recommendations encompassing the Judiciary of Lesotho especially on independence as a major point, there has arisen a need for unpacking of what the report means in the simplest of terms to the man on the streets.
The report comes as a result of a research by the SADCLA whose basis was the protracted questionable stance of the Lesotho judicial framework in practice as well as in stature. It found that there is a plethora of challenges and hiccups barricading the progression of the Lesotho judicial system. The research is said to have come about at the request of the Lesotho Law Society in 2019. Among other queries that were addressed was the independence of the judiciary from appointment of judges to poor salary structures which in turn borne disturbing results such as delay in the administration of justice, political interference and lack of leadership.
Newsday (ND) journalist, Mohloai Mpesi had a chance of a chat with Minister of Law and Justice Professor Nqosa Mahao (NM) this week to discuss the matters entailed in the report and the solutions to work them around. Below are excerpts from the conversation.
ND: What do you make out of the report?
NM: The problems in the report enlisted are the problems that have always negated our judiciary. The issue of appointment of the judiciary, disorganised structure of parliament, poor resourcing of the judiciary and the fact that the Judicial Service Commission (JSC) is very narrow, all of those problems we have long identified.
ND: How helpful do you find the report?
NM: This exercise came as a study which was conducted by SADC Lawyers Association since 2019, and only confirms what we already know. We had already identified all those problems and presently a new Act of Parliament is being drafted by the parliamentary council through our initiative, precisely to address all of those issues. So there is nothing new in the report that we didn’t know.
It is only that it helps for those who may not believe that the action we have taken is the right one. I have said before, that you can’t continue appointing judges in an unclear way without the knowledge of how one was appointed and what was the process, now here is a report that says I was right. The bill is already being developed precisely to regulate all of those processes.
ND: What are the steps that you have already taken as the ministry to give answer to the challenges?
NM: The contents of the report are already being addressed and one of the latest ways of addressing them is making sure that judges are appointed in a transparent and competitive manner which is already underway because a post for the judges has already been advertised in the public media. The seven judges which are going to be appointed will pass through a transparent process. They will be vetted; their behaviour, discipline and all of those things will be screened.
ND: Is it commendable to re-appoint retired judges to the seat of Chief Justice and Justices of the Court of Appeals as is the case according to the report?
NM: Judges retire at 75 years of age and by the time people get to that age they are already tired, some are sick and frail hence unproductive, which is why cases are dragging, and there is delay in judgments.
Public servants retire at 55 to 60 and the judges at 75 when they are old and very tired, so you can’t bring them back to the bench. We are currently reducing the age of retirement from 75 to 70 when they have a little bit of energy. One of the things that we are doing now is to appoint the younger people with energy so that the output can be observed. It is a heavy job that needs energy, resourcefulness and a clear mind-set.
ND: The Chief Justice, Attorney General, Chairman of the Judicial Service Commission, are appointed by the King acting on the advice of the Prime Minister, thus the Prime Minister plays a leading role in the appointment process, giving the impression that the institution lacks independence and that there is executive control over the institution. How is the Ministry going to solve this problem?
NM: All the other judges are elected by the Judicial Service Commission (JSC) which advices the King. But the two judges that are appointed by the King on the advice of the Prime Minister alone, is Judge President of the Appeal Court and Chief Justice, we are changing that in the law. They will be elected by the JSC also. That was a political entry, why should the Prime Minister elect a Judge? That is why they choose people politically or based on their friendship.
They are not even interviewed during their appointment. So now things are going to change; the positions are going to be declared publicly and people are going to be interviewed in a transparent manner.
ND: It is stipulated in the report that judges seem to be recruited from the registrar and magistrate ranks because lawyers from private practice are not amenable to the unfavourable salary of judges, which severely impacts the competency of judges. Can we see salaries of judges increased?
NM: We are in an unfortunate situation, salaries and benefits of our judges, from the lower ranks of small courts, magistrate to the top ranks, are poor. Our big problem is that our budget is weakening from time to time, and this year is worse than last year.
We are currently fighting and I have made a very strong case to the portfolio committee that at this rate the government is undermining the independence of the judiciary now that the budget is flagging. At the very best you could keep it at one level, not lower.
The worsening is the situation of judiciary and its support which is necessary for its independence. It is one element that we have to roll our sleeves on to ensure that the judiciary is given enough independence, but unfortunately because of the budget constraints in the country it is declining.
That’s one element in the report that’s so far I am not happy about. That is where I think the Judiciary, Ministry and Law Society have to join hands and fight.
ND: What are the effects of a weak judiciary?
NM: The political system is sustained by a healthy judiciary; the economy is sustained by the judiciary because when people have disputes they will be solved in court and people continue with their lives. But if a case drags for 10 years you are unable to continue with your life, if you are an investor and a judgment has to be made regarding your business documents, it means you are likely to wait for 10 years with your business non-operational.
A healthy judiciary is absolutely essential for a properly running political system. It must make politicians and government accountable and become a support base for a functioning court to solve disputes. Arguments are normal in life. I get letters here every day of people complaining about their dragging cases, I receive phone calls every day. Some have not got their judgment since five years ago.
Our national issues are not running smoothly because the foundation, which is judiciary, is weak. We have to get it right, so when we appoint the right people, correct the laws; we will have a sound judiciary. I have about 10 laws which will be taken to parliament, they are already there but waiting for a budget to be adopted. Some of the laws are in National Reforms Authority (NRA) which also finished three of the laws too.
ND: What about the point of foreign judges, does it apply to our advantage or disadvantage?
NM: Yes, and no. No in the sense that there is no country with 54 years of independence that depends on foreign judges, it is wrong and it should not be happening. One of the things that we are going to do is that, a Court of Appeal, in a short space of time will be comprised of Basotho. But here is the challenge; if the judges you have are not properly appointed, are not well behaved and not doing their job well, it becomes all futility. We will first have to repair the High Court because its judges are the ones on promotion to the Court of Appeal.
So if they are not well, it means they will pass with their weaknesses from the High Court to the upper court.
I said the Yes part because, now we have the foreign judges because people have poor confidence. So these high profile cases are very sensitive cases and it is good when they are handled by people whom we do not have relationships with. So they are here just for these cases and then they will leave.