On Sunday the 3rd of August, 2014, whilst driving from Durban and filling up at Harrismith, I received an avalanche of text messages from a number of friends that our former Chief Justice Julian Nganunu has departed this troubled world to meet his creator. My heart froze and a sense of intense sadness engulfed me. The Nganunu family has lost a loving father, brother and relative. The nation has lost a great jurist and a reformer of note.
I convey my heartfelt condolences to the Nganunu family and besiege the almighty to guard and protect them. They should accept that Chief Justice Nganunu ran his race and that he completed his task in this world. His time had come.
Since his retirement from the bench, we tended to meet a lot and had time to catch up on a number of issues of mutual concern. Both of us were part of the regional team that was constituted by the International Commission of Jurists to go on a fact finding mission concerning some turbulence in the Lesotho’s judiciary a year or so ago. Although I eventually could not make it to Lesotho, we used to discuss at length the role of an independent judiciary in a democratic dispensation of which he was a strong proponent.
Chief Justice Nganunu recruited me to the High Court bench. It was sometime in 2005, shortly after Radio Botswana had announced that Molokomme J (as she then was) had left the bench to become the Attorney General of the Republic, that I received a call from the then Chief Justice. He said to me: “You know Keeth, these chaps, took your friend, the academic judge, I want to replace her with one like her, so may you please send over your CV this afternoon.” The rest as they say is history.
Once at the High Court, we forged a very strong professional and personal bond and his confidence in me grew in leaps and bounds. I found myself, on more than one occasion, sitting as acting justice of the Court of Appeal and representing him at SADC Chief Justices Forum and the most memorable being the one that took us to Venice in Italy and to the European Court of Human Rights in Strasbourg. It was no wonder therefore that I was also entrusted to organise his farewell party at Phakalane when he left the bench and he was to subsequently launch my book, “Constitutionalism and the Rule of Law in Botswana” at the University of Botswana.
I have lost a mentor, father, and a friend. He had a habit of summoning me to his chambers just for a chat on diverse matters. He taught me that in the administration of justice, I must respect only the Constitution and the laws of the republic, but no persons, whatever their title; that whatever I do, I must do it correctly and resolutely; that in the execution of judgment, I must lay aside my personal preferences and that I must maintain an open mind until the matter is fully argued; that I be not biased with compassion to the poor or favour to the rich, in point of justice, that popular applause or vicious condemnation should not have any influence on what I do as a judge; he taught me that although he was my “boss” judges actually have no “boss”, save for the Constitution and that he was just the first amongst equals.
I come from a school of thought that asserts that an account of the life of a judge would be incomplete without reference to notable judgments of his and to his extra-curial writings and speeches. It is common cause that some of his judgments have received both praise and criticism simultaneously. This notwithstanding, it must be conceded that Nganunu CJ is one of the few judges who clearly deserves an extensive intellectual biography.
In what follows below, I attempt to sketch his contribution to our jurisprudence. The major difficulty is to achieve balance in what was certainly an illustrious and wholesome judicial career. The other difficulty or limitation is the inhibitions and constraints which necessarily attach to my office – as a sitting judge. It is in that context that this piece must be read.
As some of his judgments would reveal, Nganunu CJ (as he then was) was very strong on the rule of law and legality. He read law in 1966 at the London School of Economics and Political Science, a constituent college of the University of London, (incidentally where I also did my postgraduate studies in 1992) and served both government and the corporate sector at the highest levels. He was a product of those times and the environments he worked in. And because no judge ascends to the bench as an ideological virgin, the circumstances that produced him are reflected in the orientation and legal reasoning he adopted.
Jurisprudentially, the conventional theory about judging, espoused by many positivists scholars and their counter-parts in the bench is that judges are simply neutral arbiters who apply the law to the facts in a somewhat detached and mechanical fashion.
Legal realists, especially those of the critical legal studies mould contend to the contrary. If judges make new law – even positivists now concede this reality – they couch it in sophisticated language. Lord Reid, one of the luminaries of the British bench thought it inconceivable that judges do not make law.
Reading Nganunu’s judgments, you could place him somewhere in between the positivists and legal realists. He believed that judges have a role to play in advancing the values of a democratic society. His tenure as Chief Justice has been used to forge the High Court as the true guardian of the rights of the people.
Chief Justice Nganunu has produced judgments which the liberals and conservatives would celebrate in equal measure. The language he employed was always judicious, balanced, and courteous. Some of his passages in terms of lucidity and prose compare favourably with the best that English literature can offer. His cautious approach to interpretation of statutes was in many ways similar to that of Lord Simmonds – that sparring partner of Lord Denning – the two differed markedly in content and approach. Whilst Lord Simmonds was cautious, Lord denning believed that it is the duty of the courts to “iron out the creases” in legislative provisions.
In the area of constitutional law, one of the former Chief Justice’s celebrated decisions is the case of Kamanakao v The Attorney General. At the heart of this case was the complaint by the applicant that Section 2 of the chieftainship Act in so far as it defined “tribe” and “chief” in a manner that excluded the Wayeyi and other tribes and/or ethnic groups offended against Section 3 (a) of the Constitution which deals with equal treatment and equal protection of the law. The court led by Chief Justice Nganunu agreed with the applicants and directed that Section 2 of the Chieftainship Act (Cap 41:01) be amended to afford equal treatment and equal protection by that law to the applicants.
The court refused to declare Sections 77 to 79 of the Constitution unconstitutional – a subject matter that receives some attention from the German constitutional court jurisprudence, yielding contrary conclusions.
In the case of Motswaledi (incidentally a case in which it is wrongly believed the Chief Justice removed me from presiding – the facts are a bit more complicated) the Chief Justice together with his other brethrens held that our Constitution prohibits private civil proceedings against the President of the Republic. It is often forgotten that law is not a pure science and that there is no such thing as the only “correct” answer. In this case, the court made a determination it did on the basis of its understanding of the applicable law and the Italian constitutional court dealing, more or less with a similar matter, came to a different conclusion soon after the Motswaledi case was decided.
In Kanane, the Chief Justice was among those of his brethrens who upheld the constitutionality of sodomy laws. The court held that there was no evidence that the approach and attitude of society in Botswana to the question of homosexuality and to homosexual practices by gay men and women required a decriminalisation of those practices, even to the extent of consensual acts by adult males in private.
The above decision has been criticised in some quarters for having subordinated human rights to moral considerations. It may well be that when circumstances permit future generations of jurists would revisit this case and determine whether society suffers any prejudice by affording minorities outside the mainstream equal treatment under the law. It is true that the court must keep in touch with the thinking and mores of society, but in aiming for a proper balance, it must not subordinate justice to expediency. On occasions, and where the Constitution permits, it must nudge society forward.
It may well be that if the notion of human dignity is thrown into the mix and properly interrogated, the results may be different. Suffice also to say that the South African Constitutional Court faced with a similar question in the case of National Coalition for Gay and Lesbian Equality came to a different conclusion. It is plain, therefore, that human rights, though supposedly universal and indivisible remains fiercely contested.
On administrative law, he was an ardent believer of the audi rule (listen to the other side). The rule has ancient origins. When Nicodemus, the Pharisee, asked: “Does our law permit us to pass judgment on a man unless we have first given him a hearing and learned the facts?” He was of course asking a rhetorical question that in a way captures the logic of the law. The answer of course is in the negative.
Chief Justice Nganunu insisted on accountability of statutory bodies. He was of the view that creatures of statute must generally comply with the rules of natural justice before taking any adverse decision against any person or entity.
In the case of A V Communications v AG in which an order was sought to restrain the Government of Botswana, in particular the Government’s Central Tender Board, from issuing General Purchase Orders, pursuant to an award of two tenders and after emphasizing that it is impermissible for a statutory body to depart from important provisions of statute, he nullified the tender awards. Under his leadership, the High Court has exhibited greater willingness to scrutinise administrative actions, including the acts and omissions of Ministers and other top governmental officials, by the application of the principles of natural justice and judicial review.
Although, the courts under the leadership of Chief Justice Nganunu, have shown considerable enthusiasm for extending the boundaries of judicial review of administrative action, they have not lost sight of the importance of the balance between the need to control abuses of power and the need to allow public bodies to perform their duties without watching over their shoulders!
Chief Justice Nganunu would be remembered for a number of reforms that he brought to the judiciary besides the massive infrastructural developments that are littered all over the country.
Other than his jurisprudential output, Chief Justice Nganunu was a reformer of note. He introduced Judicial Case Management system in the operations of the courts, to ensure that litigation is conducted speedily and cheaply. Prior to the introduction of Judicial Case Management, the pace of litigation was largely in the hands of lawyers. Judicial Case Management shifts the control of cases from lawyers of the parties to a judge. On registration of a case, the case is immediately assigned to a judge, who, together with the attorney involved, will make a schedule for the conduct of the case to date of trial. This innovation has almost eliminated any backlog that was there and speeded up the pace of litigation.
Chief Justice Nganunu also introduced Computer Record Management system (CRMS). In terms of this system, all cases that exist in the courts are recorded in the system according to their age and type so that at the end of the day the judiciary becomes accurately aware of what workload it has.
It was also under the stewardship of Chief Justice Nganunu that the hitherto opaque appointment process was made more transparent by requiring that vacancies to the High Court bench be advertised and candidates interviewed. No doubt, opaque appointment processes are now generally frowned upon in most democratic societies.
Chief Justice Nganunu, in countless of his speeches has emphasised the importance of the independence of the judiciary. He understood that an independent judiciary is an indispensable component of a democratic society. He also emphasised this point at countless meeting of judges, including the one critical meeting that most judges would remember very well.
As a person, the Chief Justice was conscientious and a handworker. It was not uncommon for him to knock off very late in the day - having started very early in the morning. O ne a rata letsela – ever well dressed and his colour scheme faultless. He was self-effacing and modest to a fault.
The Chief Justice has played his part with his innate dignity and dedication. And although he has gone to sleep his legacy is the wisdom, he bequeathed us, as captured clearly in countless of his reported judgments. Botswana has been blessed to have a Chief Justice of the quality and presence of Julian Mukwesu Nganunu.
May his soul rest in eternal peace.
*Dingake is a member of the bench in Botswana.