The first vice president of the International Criminal Court (ICC) in the Hague, the Netherlands judge Sanji Mmasenono Monageng, whose contract expires in three years is ready to return home after globetrotting for the better part of her career as a judicial officer.
In 2018 Monageng would have served as a judge at the ICC for nine years. She tells The Patriot on Sunday, in an exclusive interview at a Gaborone resort that she would like to come back to Botswana to contribute to the development of jurisprudence, particularly in the advancement of human rights issues and vulnerable groups.
Justice Monageng, who was recently elected President of the Appeals Division of the court, speaks passionately about her new role. As vice president she is one of the three executive management team who oversee the day to day running of court creating a link between the political and the judicial side responsible for budgeting, staffing, etc.
The very calm Justice Monageng says in Botswana there is a need for a complete mind set change in the courts but recent decisions of the courts point to an encouraging development. She says judges are more and more compliant with international instruments on human rights issues and protection of vulnerable groups in society. "Botswana is now firmly within the international standards. Judicial officers should be front runners in driving positive change by delivering credible decisions that are progressive," she says, further adding that the conscience of judges becomes critical to move such developments in jurisprudence.
Although she is reluctant to discuss specific cases of governments' reluctance to enforce some court decisions, Justice Monageng, who has worked as a judge in Gambia, Swaziland and has been involved with many international organisations dealing with litigation on human rights issues, says it is imperative that states comply with court decisions. She notes that the problem is often caused by lack of coordination in the administration of justice where some components, like the prosecutors, lag behind even as court is expected to move positively forward. There is an urgent need for proper training for investigators, prosecutors and other officers of the court, she says. But she is quick to add that in some instances the degree of compliance has to be negotiated. "Sometimes a balancing act is necessary. It is important that representatives of government forewarn the state to anticipate the outcome and decisions of the court to put measures in place to implement decisions," she says.
Clearly disturbed by the accusations, Justice Monageng remains undeterred by widespread criticism that ever since it was established ICC has been targeting African leaders. The Rome Statute, the Treaty that establishes the ICC, was adopted in 1998 and it reflects the values of the Universal Declaration of Human Rights (UDHR), adopted by UN general assembly in 1948. It names the inherent dignity and the equal and inalienable rights of all members of the human family as the foundation of freedom, justice and peace in the world. The ICC has jurisdiction over genocide, crimes against humanity and war crimes, and can investigate and prosecute violations when national jurisdictions or systems are unwilling or unable to genuinely do so. She says the ICC is not itself a referral organ but only acts on cases referred to them because they are outside the assembly of state parties. Therefore if most referrals are from atrocities/ crimes committed in Africa such an impression will be created, she argues. She says such perceptions may not necessarily be true because they are currently handling referrals on crimes committed in countries like Georgia, Columbia, Afghanistan and Syria. She explains that cases referred to ICC are complex and may take long to investigate and resolve because the court is not based in the jurisdiction where crimes are committed. Some referrals are made on on-going conflicts, whose investigation is complex, resulting in delays. Further, some countries where violations occur have not ratified the Rome statute. Other challenges include identifying and bringing witnesses to testify in cases referred to ICC by member states. "Before we conclude like that we need to closely look at facts. Countries bring cases to the ICC themselves. Even if we were (targeting African states) are there no human rights violations in Africa?" she asks.
Justice Monageng says she is confident that the future of ICC is bright as they have engaged in a massive revitalisation process of the organisation. She says the ICC is reviewing their way of doing things to accelerate processes and improve on their turnaround time to deliver judgments. "We have seen a marked improvement in the way we have been doing things. We have lately been churning out judgments in good time," she declares, confidently.
Officiating at a seminar on the courts' role in protecting the right to equality of vulnerable groups in Botswana on Monday, Justice Monageng called on judicial officers and legal professionals in courts to not only improve the extent to which vulnerable groups are able to access courts, but to develop local jurisprudence so that it takes them into account. She commended the Industrial court on extending the notion of prohibited grounds of discrimination in the context of HIV, setting a precedent for the region. The Court of Appeal also got praised for the decision in the Basarwa case over access to water in the Central Kalahari Game Reserve (CKGR). She however noted that the Botswana Constitution is not without limitations, especially since it was enacted in an era in which equality was not seen in the same light as it is today. "Section 15(4) for example provides that a law may discriminate with respect to persons who are not citizens of Botswana; with respect to adoption, marriage, divorce, burial, devolution of property on death or other matters of personal law, and in the application of customary law," she said.
Justice Monageng was awarded the 2014 Human Rights Award on May 9, 2014 in Arusha, Tanzania by the International Association of Women Judges (IAWJ) in recognition of her possession of great expertise in human rights issues, the rights of indigenous people and communities, children's rights, and the rights of vulnerable people. Monageng was honoured at the 12th biennial conference from May 5th - May 9th, 2014 for her exceptional national and international judicial service. She has worked tirelessly to protect and expand the rule of law, to promote access to justice and human rights, and to move the 2014 IAWJ biennial conference theme "Justice for All" from an ideal toward a reality.
The International Association of Women Judges expressed deep admiration for Justice Monageng's accomplishments, its high regard for her judicial leadership, and its warm appreciation for her sisterhood. She has served as a Commonwealth Expert Judge sitting as a High Court Judge in the Kingdom of Swaziland and also as a Judge of the High Court of the Republic of The Gambia;
Monageng began her judicial career as a Magistrate in Botswana and served as the founding Chief Executive Officer of the Law Society of Botswana for many years. Judge Monageng was appointed by the African Union as a member of the African Commission on Human and People's Rights and was appointed the Commission's Chairperson from November 2007. She has also served as Deputy Chief Litigation Officer in the United Nations Observer Mission to South Africa.