Magistrates across Lesotho want a change in the way awaiting trial prisoners are treated. They are particularly concerned about conditions they believe impact negatively on the rule of law, judicial integrity and general confidence in the legal system. Now they have taken a number of resolutions likely to impact on the courts and the public. Among others, they have resolved to release people being held awaiting trial if their cases ‘are not prosecuted within a reasonable time’. They have also resolved to dismiss criminal cases where ‘pending investigations’ have continued for an ‘unreasonably long time’.

Magistrates in Lesotho are clearly unhappy. This year they have already tried repeated strikes to highlight their concerns but without success – promises made to them have come to nothing.

Then, this week, representatives of the magistracy from across Lesotho met in Maseru and took a number of decisions likely to impact on the functioning of the courts and the legal system throughout the country.

As magistrates, they have resolved to dismiss criminal cases brought to court while investigations have still not been completed even though the accused has been awaiting trial for an unreasonably long time. They said they will also release people who are in prison, awaiting trial, if their cases have not been prosecuted ‘within a reasonable time’. Their third resolution is a recommendation that the courts should decline to remand suspects where their cases are brought before court for a first remand while their cases are still under investigation.

These moves were partly the result of an inspection of Maseru’s central prison carried out by the Acting Chief Justice, Maseforo Mahase.  She visited the prison with the Chief Magistrate and the Acting Registrar. They found overcrowded cells and many people awaiting trial. The ACT even heard that some had been waiting trial for up to eight years and that now no-one knew their history. For these people, the charges were no longer known. No one knew the responsible prosecutors and magistrates. ‘These inmates have effectively been forgotten while in prison,’ said the magistrates in their report on her visit. As a result of what she found in the central prison, the ACJ called a meeting to find a way to deal with these ‘forgotten’ accused people, and to return the magistracy ‘to professional ways’. It was as a result of this meeting that the magistrates made their resolutions about how to respond to the overcrowded jails.

The magistrates said that their decisions had been carefully considered and were based ‘on law and principle’. In their view it was wrong, from the start, to have allowed the practices that lead to overcrowding to develop.

When the magistrates had first begun to relax the normal ‘procedures and principles’ it was because they considered this was necessary given Lesotho’s economic conditions. ‘Little did we know that the Crown would abuse the relaxation of red tape (leading) to the violation’ of the rights of accused persons to this extent.

The resolutions did not introduce a ‘new’ system, but rather ‘reinstated proper procedures and adherence to the constitution and other laws’. Irregular procedures had been in use for so long that some might fear the state would not cope. In the view of the magistrates, it would manage if the correct processes were used.

The ‘new’ system would also have an economic impact: keeping people waiting unnecessarily for many years impacted negatively on public funds. Taxpayers had to pay for food and other expenses related to awaiting trial prisoners. Where there were no compelling reasons to continue holding people in prison for lengthy periods, they should be freed until they are tried and sentenced.

There might be people who assumed the resolutions were aimed at derailing the wheels of justice or at protecting some suspects from prosecution. But the magistrates said this was not so. Each case would be individually evaluated. Where circumstances dictate that a pending case should be dismissed, it will be. ‘Likewise, unless there are compelling reasons, an awaiting trial inmate will be released from prison and attend trial from home.’ On the other hand, accused persons themselves might be responsible for delays. Where that has happened, the accused would not necessarily be released, pending trial.

The magistrates concluded, ‘Our message is that the state should bring cases for us to hear and deliver justice speedily. We will not remand cases and let them pile up to keep us busy with remand sessions. Our role in society is to do justice between the state and man as well as between man and man, without fear, favour or prejudice. The past practice has favoured the state over man and it was unfortunate. It violated the constitution.’

  • Newsletter, Judicial Institute for Africa (Jifa), 29 August 2019