Kgafela, company to appear today

GREG KELEBONYE
Staff Writer | Wednesday November 10, 2010 00:00

 

They are expected to apply for recusal of the magistrate through their lawyer, Unity Dow.

During a meeting of the Bakgatla last Sunday, Mmusi told the audience that it was clear from magistrate Nyamadzabo's demeanour that he was bent on sending them to prison.

'Nyamadzabo's ruling has shown us that he will find us guilty. He has already shown bias [and] we are going to apply for his recusal,' he said.

He said they would necessarily apply to Nyamadzabo himself, in which case he may decline to recuse himself. '[But] if he refuses we will apply to the High Court,' he said.

He warned the tribe to be prepared for their Kgosi's further incarceration.

This, he said, was because although they had appealed the magistrate's decision to the High Court, the Chief Justice did not touch all but one issue among the several they had raised.

One of the cardinal issues, which they wanted the High Court to determine, was whether Nyamadzabo had not acted outside his jurisdiction by determining issues of constitutional interpretation, which should be a forte of the High Court.

The issues were whether go kgwathisa (to flog), constitutes a crime and therefore is not part of Setswana culture and inherently not part of Sekgatla culture; whether go kgwathisa (to flog), is an offence when carried out in terms of customary law that is, whether the Kgosikgolo has the right to enforce corporal punishment in his jurisdiction and the nature and extent of powers of Kgosikgolo or kgosi and whether the kgosikgolo or kgosi are protected under the law for crimes they allegedly commit in the course of their duty.

It has always been the defence' case that the Kgosi acted within the parameters of the customary law and that Bakgatla ba Kgafela should be free to practise their culture, in accordance with the Constitution of Botswana without hindrance or spectre of being criminally liable.

Dow also contended that Nyamadzabo erred in his finding that the application by her clients for referral of the case to the High Court, for determination of the issues in point, was 'frivolous and vexatious'.

However, Chief Justice Maruping Dibotelo simply granted bail to the monarchs on the basis of the fact they were now committing themselves to stopping the beatings, and would not touch the other points for the appeal.

'In our bail, the Chief Justice did not deal with whether the magistrate acted properly or not.

The Chief Justice set aside the magistrate's decision to send the king to jail, not whether the magistrate erred or not,' said Mmusi.

He said as a result they still have to face trial. That, he said, was wrong as certainly it was not impossible for government to have an open discussion with the Bakgatla Bogosi instead of charging them.

Where the parties could not agree, they could always approach the High Court for determination of the issues in dispute.

Now because government chose not to discuss with the Bakgatla leadership, the Dikgosi faced the prospect of jail, he said.

'We still are to face trial. Should we be found guilty the magistrate may sentence us to a jail term of not less than five years plus lashing,' he said, adding that it is disappointing that tribal leaders should be jailed or lashed over issues that could be discussed and consensus reached.