Tuesday, September 29, 2020

Nganunu ÔÇô from hero to zero?

Julian Mukwesu Nganunu is not a name that trips off the tongue alongside those of national heroes like Glodie Dube or Mpule Kwelagobe. For in Nganunu’s business – if you could call it that – there are more criminals wishing you dead than hysterical fans stepping over each other to shake your hand.

He would probably be the last person to describe himself as a hero, but Nganunu has made a real mark in Botswana’s jurisprudence.

His moment of heroism came early on in his career as a judge. While his contemporaries were comfortable at the end of a long tradition where rapists only had to show medical reports to prove their innocence, Nganunu took a historic place at the beginning of a new tradition: that a medical report does not prove rape and insisted that all elements should be taken into consideration.

His ground breaking judgment turned the tide against rapists and is probably the most cited precedent in rape cases. No sooner had Nganunu ascended to the position of Chief Justice than he realized that for every court room heroic exploit there are a hundred administrative crises conspiring to bring you down.

Far from the hero who ensured that rapists are sent to jail, the Julian Nganunu who keeps turning up on the pages of local newspapers is a man with crises on his hands. His “IN” tray is always snowed under petitions from unhappy citizen magistrates complaining about their conditions of service or discrimination or even making claims that there is a systematic plan to flush citizen magistrates out of the system. Through out his term as Chief Justice, the full wrath of unhappy citizen magistrates bore down on him.

He became the lightning rod of controversy and a one man fire brigade, rushing off to put out fires in the magistry and then rushing back to the high court to quell dissent among his ranks.

For years, he found himself caught up in a running battle with citizen high court judges who were querying their permanent and pensionable status while some of their colleagues were employed on contracts. In the meanwhile, his standing was taking a severe battering.

For a good part of 2008, he battled to shrug off allegations that he had tried to pervert justice. The media carried a series of news stories suggesting that Nganunu may have attempted to ‘pull rank’, using his influence to pressure a magistrate to release his relative from remand. Further, it was suggested, Nganunu, wanted judgement against his relative altered. The allegations stoked the public unease over the independence of the judiciary. If, however, there was any one incident that brought the public mood into sharp focus, it was last year’s ruling against banished Botswana Democratic Party (BDP) Secretary General, Gomolemo Motswaledi who was challenging his suspension by President Lt Gen Ian Khama from the party. Justice Nganunu presided over the case alongside two of the best brains on the Botswana bench: Justice Ian Kirby, whose critics say he is such a brilliant judge, none of his judgments are ever overturned by the court of appeal and Justice Isaac Lesetedi, who is reported to be so intelligent and fair that his judgments have sent most criminals to their prison cells smiling.

Nganunu’s situation was not helped by squabbles with his business partners. Sometime mid last year, the row burst into the open with his partners in 21st Century trading accusation on the floor of the courtroom. The wrangle involved Minister Charles Tibone and businessman Lawrence Lekalake against former president Festus Mogae and Nganunu.

Tibone and Lekalake filed papers at the Lobatse High Court to reject claims that they falsely appropriated shares in 21st Century Holdings. Tibone and company filed papers at the High Court dismissing accusations by Nganunu and Mogae group.

Nganunu, Mogae and company argued that Tibone and Lekalake acquired their 66.67 percent stake in 21st Century contrary to an agreement or arrangements previously set. They argued that according to the agreement, all partners were supposed to get an equal number of shares.

Nganunu and Mogae’s group claimed that they got a raw deal in the way the shares were allocated because Tibone and company got the biggest chunk. They want the acquisition declared null and void. Alternatively, they want the court to order Tibone and Lekalake to return the shares.

But Tibone and Lekalake denied any wrongdoing, arguing that Mogae’s and Nganunu’s camp was not entitled to the shares.

His once charmed life appeared jinxed: One night as he was driving home, he was carjacked. The thieves tied him up and drove for some time before they finally dumped him on a roadside. They took his car, his bank cards, and his shoes.

Towards the end of last year, there were whispers that Nganunu, a very close friend of former president Festus Mogae, was not as cozy with President Lt Gen Ian Khama. There were even reports of a plan to push him out of the Chief Justice chair and make him president of the Appeals’ court. Up until yesterday when he tendered his resignation, due to poor health, Nganunu was Chief Justice of the High Court and also sat on the court of appeal panel of judges.

The Ministry of Defence, Justice and Security is currently drafting an amendment to insulate the High Court from the Court of Appeal which will ensure that no judge sits on both the High Court bench and the Court of Appeal panel of judges.

The Minister of Defence, Justice and Security, Dikgakgamatso Seretse, confirmed in an interview with the Sunday Standard last year, that, after they have amended the law, the chief justice would only hold one position at the Court of Appeal, which is the highest court in the country. He said it is the best practice in law that the CJ holds one position.

It is an irony that while to admirers he is man with an unwavering sense of justice and fairness, to many others he will be remembered as a man who went through so much more than the public would ever imagine.

It would seem strange that having put up with so many challenges in his career, it turns out that his most formidable opponent has been his health.
Yes, he stood up to, looked in the eye of and took on the fiercest blows. Then when it seemed that things could not get any worse, his heart turned against him. And the simmering magistrates’ row still rankles, even while he is on his sick bed recovering from a heart attack that supped away so much of energy until he gave up even his interest for Law .

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The Telegraph September 30

Digital edition of The Telegraph, September 30, 2020.