A growing legal titan

01 Mar 2012

When Sanji Mmasenono Monageng joined Botswana’s legal profession as a magistrate attached to the District Commissioner’s office in 1989, there were very few Batswana in the legal system. There were hardly any court structures, her chamber often doing duty as a courtroom.

“The work schedule back then was grueling,” she says, recounting her rise to the level of Principal Magistrate by 1997. That punishing schedule would involve mention of cases from eight in the morning till four in the afternoon. Then after four, she would begin the trials, often working till 10pm. “It was the beginning of my human rights activism,” she says. “My experience as a magistrate stood me in good stead to compete internationally.”

Indeed, over the last seven years, Monageng’s stock has steadily risen in the wake of her appointments on the international legal circuit. In 2003, she had landed firmly on the international legal front with a nomination to the African Union’s Commission on Human and People’s Rights, a body based in Banjul, the capital of the Gambia. As one of 53 commissioners, she became part of a motley group that heard cases from individuals and NGOs alleging violations in AU countries. These are cases that have gone through the individual countries’ judicial processes up to the Court of Appeal.

‘A wonderful experience’, is how she terms her stint on the AU commission. By the time of her nomination to the commission, many of the 53 countries had ratified the African Charter on Human and People’s Rights. “But in many instances they enacted laws that violated the provisions of the charter.”

Africa, she reckons, would be a better place if countries referred to the charter all the time. She said some of the countries even periodically “forget” their obligations to the charter and accuse the AC of meddling in the affairs of their courts.

Like a comet streaking through the evening sky, Monageng’s career surged in 2006 when she took up a two-year appointment as a High Court judge based in Banjul, the Gambia. By November 2007, she was serving as chairperson of the Commission on Human and People’s Rights. “The High Court appointment,” she said prior to moving to Banjul, “demystifies the belief that magistrates can’t be appointed judges, or that people who haven’t been in private law practice can’t make judges.”

Parallel with the Banjul appointment, Monageng served as a High Court judge in the Kingdom of Swaziland, responsible for criminal and civil cases as well as constitutional matters.

Earlier, Monageng’s human rights activism had included chairing the Ethics, Law & Human Rights sector of the National Aids Council. More significantly, she became the first executive secretary of Law Society of Botswana after the body was set up in 1997. Her years as magistrate had steeled her for the roller coaster ride at the Law Society. “We had to put all our energies into lifting professional standards,” she says. “It wasn’t easy. What compounded the problem was that we had to deal with complaints going way back to 1982.”

Going into the appointment to the bench in Banjul, it was clear she would bring to the bench a different type of personality – one far removed from the stereotype of the stern, scowling judge. “In the last eight years, I have lived human rights, so I’m a judicial officer who can recall real life situations and anchor my experiences on my social context education,” she said in 2006 ahead of the Banjul stint.

Then in January 2009, the apex came. Monageng and five other judges from Guyana, Japan, Italy, Belgium and Kenya were elected to the International Criminal Court, based in the Hague, for a non-renewable term of nine years. She was assigned to the Pre-Trial Division.

In June last year, she was part of a landmark decision over the late Libyan leader, Muammar Gaddafi. As NATO war planes pounded Gaddafi’s Libya compound, ICC judges ordered the arrest of the former strongman for murdering Libyan civilians who rose against him. The ICC said Gaddafi, his son Seif al-Islam Gaddafi and his intelligence chief Abdullah al-Sanoussi were wanted for orchestrating the killing, injuring, arrest and imprisonment of hundreds of civilians during the first 12 days of an uprising to eject Gaddafi from power, and for trying to cover up their alleged crimes.

Monageng, the presiding judge, termed Gaddafi the “undisputed leader of Libya” who had ”absolute, ultimate and unquestioned control” over his country’s military and security forces. Further, she said prosecutors presented evidence showing that following popular uprisings in Tunisia and Egypt, Gaddafi and his inner circle plotted a ”state policy … aimed at deterring and quelling by any means, including by the use of lethal force, demonstrations by civilians against the regime.”

A human rights advocate to the core, Monageng has, among other things, also chaired one of the special mechanisms of the Commission on Human and People’s Rights – the Follow-up committee on torture, inhumane, degrading and other treatment. She has spoken severally on human rights, criminal law, humanitarian law and many other areas of the law. Often when giving lectures on these issues close to her heart, she comes across as almost self-effacing.

“What really would I say about human rights that has not been said already?” she said at one forum. “There is always a challenge and risk of sounding presumptuous, self righteous and even prescriptive.”

Nevertheless, Monageng has some deep insights on the African human rights scene, spanning the thirty years of the African Charter on Human and Peoples’ Rights. The 20th century, she says, witnessed probably the worst cases of human rights violations in Africa while the 21st century also began with stark challenges for human rights enjoyment. “I have, in my life, been a witness to such violations,” she says. “For instance, in my capacity as a Commissioner, in 2008, I undertook a human rights Promotion Mission to one African country. There I was confronted with the practice of Trial by Ordeal. Of course in many of the cases the victims are women.”

To be sure, she says, the debate on human rights, frowned upon and violently suppressed in many autocratic African regimes in the past, now finds favour in political circles across the continent. She sees this as a tribute to the enduring struggle of Africans, and the unfolding changes that are taking place in Africa’s human rights landscapes. “I need not remind you of the popular uprisings in North Africa,” Monageng says. “Within the last quarter of the 20th century, Africa has witnessed a growing recognition of the place and relevance of human rights.”

Yet she sees a paradox. Despite the universal appeal of human rights, millions of people are, on a daily basis, denied their rights – some for a right as simple as expressing an opinion. “In some societies in Africa, one runs the risk of being jailed or even killed for expressing a critical opinion about their government,” she says. “Many journalists have suffered for merely exercising a fundamental right enshrined in all major international and regional human rights instruments.”

The challenge for human rights activists and NGOs, Monageng believes, is to maintain the momentum of human rights activism. This will impel a culture of observance of human rights observance. “If NGOs are not in harmony with the views, concerns and the aspirations of the people whose rights they seek to champion and protect, there will naturally be a disconnect, and the gains that we have made over the years may well be whittled down,” she says.

She lauds the African Human Rights Consortium for its courage, resilience and commitment to promoting and protecting human rights on the continent. “It can never be easy, especially in terms of resources, both financial and otherwise.”

Monageng sees monumental progress on the continent in democracy and human rights observance. At the same time, she notes, the limitations to the full realization and enjoyment of human rights in Africa remains daunting. “As Mahatma Gandhi said, ‘You must be the change you wish to see in the world’,” Monageng quips.