Customary court presidents rise up against gov't
Ryder Gabathuse | Friday June 1, 2018 13:30
Although the urban-based traditional leaders have had incessant skirmishes with the parent ministry of Local Government and Rural Development through simple exchange of letters, this week the leaders engaged an attorney to fight from their corner. They are raising a plethora of issues that the ministry has preferred to sit on. At the core of traditional leaders’ concerns is a need to be treated at par with their traditional colleagues in the rural areas, otherwise known as kgosi (chief), moemela kgosi (chief’s representative) and mothusa kgosi (deputy chief) . They argue that they discharge the same judicial and administrative functions as their counterparts in tribal jurisdictions and wonder why the discrimination to them in urban centres when it comes to their conditions of service.
“As customary court presidents, we should be enjoying same jurisdiction functions and privileges as the rest of the presiding officers,” said one of the 25 affected customary court presidents and deputies who have taken the government head on.
He was quoting a savingram authored by the current Attorney General, Abraham Keetshabe in 2006 before he ascended to the current position, explaining the jurisdiction of customary court presidents and their deputies.
They have registered a concern that whilst their colleagues in tribal areas around the country retire at 80 years, for them, their contracts are haphazardly not renewed and they do not adhere to the retirement age of 80 years which, it seem only applies to the dikgosi in rural areas. Majority of the court presidents and their deputies had their contracts not renewed upon reaching the age of about 60 years, in a way, forcing them to retire.
They said some of them are already in retirement as a result.
One of the concerned court presidents in Gaborone told Mmegi that the government of the ruling Botswana Democratic Party (BDP) seems to be clearing off some of the customary court presidents from office including their deputies so that they could reserve the positions for some of their losers in the impending Bulela Ditswe primaries billed for August this year.
“It’s common cause that when some of the BDP cadres lose Bulela Ditswe primaries, they are rewarded with some of these positions. I am saying this because one of President Mokgweetsi Masisi’s men from Bobirwa (name withheld) was rewarded with a similar position in Jwaneng after the Tonota BDP elective congress,” said a traditional leader who preferred anonymity.
The customary court presidents this week instructed their attorneys of record, Nfila Attorneys to write to their parent ministry registering their intention to institute legal proceedings before the High Court seeking an order declaring that court presidents and their deputies are not transferrable from their respective duty stations; that the permanent secretary be interdicted from transferring court presidents and their deputies from their respective stations. They also prayed for an order seeking the Minister of Local Government and Rural Development be directed to prescribe 70 years as the age of retirement for court presidents and their deputies. Their letter to the ministry from their attorneys has been passed to this publication. The traditional leaders’ intended legal action will be the third one in a series of legal proceedings involving their parent ministry and themselves.
“These never ending legal tussles arise now and then ostensibly because there is no suitable legal framework governing the employment of court presidents and their deputies. They are employed under the Public Service Act, but perform functions regulated by a different legal framework, the Bogosi Act and Customary Courts Act,” reads the letter of intent authored by the law firm on behalf of the litigants.
Customary court presidents and their deputies contend that they perform functions and duties on all fours with that of tribal authorities (Kgosi, Mothusa Kgosi and Moemela Kgosi) however, their privileges are differentially inferior to those of magosi in rural areas.
“By way of illustration of the differential treatment complained of above, you recently stated in writing your intention to transfer certain of our clients from their duty stations. Kgosi, Mothusa Kgosi, Moemela Kgosi and Kgosana on the other hand are not transferrable,” further reads the litigants’ contention.
In the event, a decision to transfer the customary court presidents and their deputies is made, “we contend that such a decision would be susceptible to judicial review on the basis of unreasonableness, irrationality and illegality”.
The government has been given 30 days to respond to the concerns of the customary court presidents and their deputies as articulate by attorneys of record from the law firm Nfila Attorneys. Efforts to get a comment from the Ministry of Local Government and Rural Development permanent secretary, Khumo Matlhare and his deputies was futile this week they were said to be busy.
When reached to comment on the raging issue of customary court presidents, their deputies and their tribal authorities counterparts, Pelonomi Venson-Moitoi who is fairly new at the ministry proffered ignorance.
She however, acknowledged that the customary court presidents and their deputies seem to be having long standing issues with their tribal authorities counterparts relating to their conditions of service.
She also requested for time to acclimatise to the latest developments relating to the concerns of the customary court presidents and their deputies.