Kgafela challenges the validity of Botswana's constitution

GREG KELEBONYE
Staff Writer | Friday December 2, 2011 00:00

Bakgatla Paramount Chief Kgafela Kgafela filed the initial petition in October as an exception to an ongoing criminal matter against him and 13 others, currently before the Village Magistrate's Court.  In the exception Kgafela is challenging the legal authority of the government to prosecute him. Kgafela has argued that the constitution, from which government's very existence, together with that of the court flows, lacks legitimacy. He says this is because it was written without input from Batswana and also violates God's standard, which calls for people to follow the law of their forefathers, chief among whose tenets is respect for dikgosi.

As evidence Kgafela will present a 1965 letter written by dikgosi of Balete, Bakgatla, Bangwaketse and Batlokwa wherein they complained about lack of consultation in the drafting of the constitution.  Their complaints though were unheeded by then Prime Minister Seretse Khama and his right-hand man Ketumile Masire, both of whom later became presidents of the Republic of Botswana, he said.

'Khama and Masire saw themselves as qualified to decide the future of everyone else in the country. There is also evidence that Phillip Matante also raised concerns during the constitutional talks in London. He later withdrew from the talks in protest,' says Kgafela. Not that consultation would have been of any effect as whatever semblance of consultation Masire and Seretse would have conducted would have been in English, which the majority of Batswana did not speak, he adds. Thus, he says, the constitution document and all administration flowing from it are a fraud and must be set aside.  Kgafela will therefore challenge the Directorate of Public Prosecutions (DPP) to prove him wrong in his assertion that there was no consultation, failing which he will ask the court to throw out the charges laid against him and his co-accused as they are based on a fraudulent constitution.

'If the DPP is unable to prove me wrong, then the court must set the constitution aside and free me and my co-accused from the bondage of trial. This is the relief I seek,' he says.

In the application before Court, only Kgafela is cited as suing the Attorney General (AG) and the DPP. However since in the main case, he is accused along with 13 others, the AG's application has applied for joinder, which would see Kgafela's co-accused cited as suing alongside him. The fact that only Kgafela was suing seemed to also disturb the court, which wanted to know if the other 13 were suing as well. Tafa questioned Kgafela if he is the only applicant . 'We don't want a situation where they claim costs if you win or the AG wants costs from them if you lose, unless it is clear that they are part of the case,'Tafa said.

While he says he is yet to respond to the joinder, Kgafela says he was not averse to the idea as long as AG Athaliah Molokomme recuses herself from the case.

'The AG must recuse herself from the case, and we shall be with them in the joinder,' he says. Kgafela wants Molokomme to recuse herself because 'she went beyond her duties as AG and personlised issues against me,' he says. All the cases against him currently before the courts were at Molokomme's instigation and this 'obliges her to recuse herself from the case,' he adds.

Kgafela also says that he had hoped Molokomme would see sense in a letter that he wrote her earlier in the week asking her to recuse herself. However, he says that if the court insists that he should apply for her recusal, he will oblige.

As per the schedule, Kgafela is also expected to ask for the recusal Tafa. His attempts to discuss the matter behind doors were shot down by Gaongalelwe who said that Kgafela should apply for the judge's recusal.Furthermore Kgafela will ask that the matter be held in Mochudi. The constant travel to Lobatse is too expensive for him and his family. However, Gaongalelwe says Kgafela will have the opportunity to make any interlocutory application and should do so.

Thus the court ordered that: Kgafela should have answered the AG's application for a joinder by no later than December 6. The AG should have responded by December 28. The case management conference will be held on March 1, 2012, on which date the arguments for the joinder and others shall be heard. Any opposition by either party should be made by February 17, 2012. Kgafela represented himself, while Monthe Marumo, Molokomme and four others represented the state.