Speaking truth to power

Abel Chapatarongo

MASERU

When Matankiso Nthunya was appointed Chief Magistrate of Maseru in January 2013, the first thing she noticed was that Lesotho is a highly politicised society.

The divide between political parties is as clear as day and night.

As she discharged her duties, judgements in even mundane matters would be seen through the “great divide” that separates Lesotho’s political parties. Every decision that she made would be dissected through political lenses.

Sometimes she would be seen as pro-Establishment while sometimes she would be seen as backing opposition parties.

She says political pressure does not come from government officials; it comes from ordinary Basotho at the grassroots level.

It comes from the media, both radio and print; it comes from social media networks such as Facebook which allow Basotho to air their views, under the cover of anonymity.

The online comments are often crude. Sometimes they go beyond the limits of decency.

Nthunya says she has been “a target of everything”.

It is in this highly toxic political environment that she seeks to uphold her oath of office as a judicial officer.

“The society is highly politicised; when you make a ruling it is always interpreted in terms of political terms,” she says.

Yet, in spite of this toxic environment, Nthunya says duty demands that she remains true to her oath of office.

“I am very serious about the oath of office that I took when I came here, that I shall discharge my duties without fear, favour or prejudice,” she says.

She says what drives her on is a realisation that all individuals who appear before her in court “are entitled to all rights”.

While powerful forces outside the courts might want an individual locked up, Nthunya says that does not determine how she dispenses justice.

“If I feel you should not be locked up, I don’t care how everybody feels.”

She says judicial officers are not politicians and should therefore “not seek public opinion or approval”.

“We have to be guided by the Constitution, the law and our conscience,” she says.

She says because judicial officers are not politicians, “we are not in the business of soliciting approval from the public”.

“We stick to the law and the Constitution and that drives me and keeps me going,” she says.

“That gives me inspiration, my oath of office keeps me going. I am here to give justice to all without fear.

“None of the people who appear before me will go to prison merely because someone (outside) wants them to go down.”

But sometimes the emotional and psychological pressure can take its toll on her and her health. When it does so, she finds solace in religion, turning to her God for comfort.

A deeply devout Christian, Nthunya says when she cannot cope, she visits her spiritual mentors at her Lesotho Evangelical Church (LEC) “who always have something to say” in comforting her.

Nthunya says her biggest source of inspiration are two outstanding women, Chief Justice Nthomeng Majara and South Africa’s Public Protector Thuli Madonsela.

These two have proven that women can be good leaders and a force for positive change, she says.

Nthunya’s eyes light up when she speaks of Madonsela, a fearless woman who has stood up, particularly against President Jacob Zuma over allegations of corruption and abuse of public funds.

“If I was in a similar position I would do exactly the same. She does it well irrespective of the consequences. She does what she feels is right without any bounds, I like that attitude in a leader.”

She says the 1995 landmark case in South Africa, State versus Makwanyane, has had a tremendous impact on how she views public opinion in so far as it relates to her judgements.

In its judgement, the Constitutional Court of South Africa ruled that capital punishment was “inconsistent with the commitment to human rights expressed in the Interim Constitution”.

The court invalidated a section of the Criminal Procedure & Evidence Act 51 of 1977 that provided for the use of the death penalty.

The ruling went against the prevailing sentiment among South Africans who still favoured the retention of the death penalty.

In his ruling Justice Chaskalson said although popular sentiment could have some bearing on the court’s considerations, “in itself, it is no substitute for the duty vested in the courts to interpret the Constitution and to uphold its provisions without fear or favour”.

Nthunya says the spirit of that judgement permeates her thinking as she seeks to deliver justice to Basotho without fear or favour.

“That gives me inspiration,” she says.

Nthunya says the Administration of the Judiciary Act 2011 which established the judiciary as a separate entity from the Ministry of Justice must be repealed because it does “not say much about subordinate courts”.

“The law was rushed through the system and left out a lot of things. The Act that gives us (magistrate’s courts) autonomy but does not say anything about us.”

She is also not happy with the current manner in which judicial appointments are made. She says only five people, including the Chief Justice, decide on who becomes a judge of the High Court.

Such a process is narrow and not representative enough, she says.

“We need to review the Judicial Services Commission (JSC) so that it is fully representative,” she says.

Nthunya says she is quite disturbed by the rising backlog of cases that are clogging Lesotho’s judicial system. She says cases involving homicide are on the rise, adding she does not know what society has become of late.

“The rate at which they come and compared with the rate at which we dispose them is quite terrible,” she says.

She says this is because there are far too few judges who have been appointed to the bench at the High Court to deal with such cases.

At present there are only 12 judges at the High Court, with two at the Commercial Court and two at the Land Court, leaving “four judges to do everything”.

The situation is no better at the Magistrates Courts around the country.

The number of judicial officers is also low. For example, in Maseru, there are 16 judicial officers who are tasked with handling all cases brought to the courts.

Nthunya says the other major problem is the usual postponement of cases because witnesses fail to turn up in court. By the time the cases are brought before the courts, in a number of cases, some of the witnesses would have died.

She says the police, lawyers, prosecutors and judges must all work in sync to speed up the delivery of justice.

“Yes, we have a backlog but it’s not of our making; all other sections have to do their part to get things moving,” she says.

Nthunya says she is proud to have played her part in delivering justice to Basotho over the past 25 years.

She says when she was appointed Senior Resident Magistrate at Tšifa-li-Mali Local and Central Court in Hlotse in Leribe in 2001, “to her horror and dismay, I found out that the buildings were so dilapidated and in terrible condition”.

She then began a conscious process to push for the building of a new complex in Hlotse. The result is a brand new Tšifa-li-Mali Court complex that now houses the Magistrate Court complex that is the pride of Hlotse.

“That’s my pride, that new court complex stands out, that was my dream,” she says.

Nthunya was born in Maseru in September 1967 to a father who was a civil servant. She was the only girl in a family of six children.

She says much of her combative nature stemmed from that background when she had to fight to get her way as a girl.

“I learnt from a very young age to fend for myself, to stand for what I believe and not to follow the majority,” she says.

She says while her father provided well for his family, they “never had all the luxuries of life but never really suffered” while growing up.

Her father, a former teacher, was passionate about education and to pay for all his children’s school fees, he would at the beginning of each year sell one of his cows to raise fees for his children.

Nthunyafact-file

• Nthunya began her education at the Methodist Primary School in 1973 but completed her primary school at the Maseru LEC Primary in 1979.
• She then moved to Morija Girls High School for her high school between 1980 and 1984.
• But because she had attained a third class pass at COSC, she had to enroll for a Diploma in Law which she later used as a stepping stone to enroll for a BA in Law at the National University of Lesotho (NUL)
• Studied for a BA Law between 1987 and 1990
• She joined the Ministry of Law as a Public Prosecutor in 1990
• Joined Ministry of Justice as a Magistrate in 1992; transferred to Qacha’s Nek in 1992
• In 1994 went back to the NUL for a LLB degree
• She joined the Ministry of Justice as a Magistrate in 1991;
• She was a Senior Resident Magistrate from 2001 to 2006
• Worked as Resident Magistrate in Butha-Buthe between 1997 and 2001
• I was transferred to Maseru as Chief Magistrate for the Central Region, having been appointed as Chief Magistrate for the Northern Region in January 2006 while in Leribe
• She holds a Masters Degree in Medical Law from University of Kwa-Zulu Natal
• She is currently the regional Vice-President of the Commonwealth Magistrates and Judges Association (CMJA)