Thursday, September 24, 2020

A public statement by Bakgatla Ba Kgafela in respect of prosecution of Kgosi Kgafela and others

The office of Kgosi Kgolo Kgafela II in Mochudi and Dikgosana of Kgatleng District would like to give the following assurances to Bakgatla tribal community and the general public of Botswana who have taken a genuine interest in the events and activities at Kgatleng or concerning Kgosi Kgafela.
Kgosi Kgolo Kgafela II together with some of the royal uncles and Bakgatla Dikgosi are undergoing a criminal prosecution for assault resulting from actual or alleged disciplinary measures imposed upon various complainants in the Setswana form of flogging with the moretlwa branch on the bare back (go kgwathisa). Such complainants include the preachers of the Family of God Church and Mr Tselapedi Mooketsi. The incidents of alleged flogging in respect of the former took place in April this year whilst those in respect of Mr Mooketsi took place last year October.

In the kgotla meeting held at Mochudi on 15th and 29th May 2010 a detailed explanation was given to the public on circumstances leading to the disciplinary measures carried out upon the Family of God Church preachers and Mr Tselapedi Mooketsi. It was reported that the preachers had respectfully been requested by Dikgosi and the community of Mochudi not to make noise at night with their musical instruments. They were requested also to attend at the kgotla for them to be advised of the law and agreement of the community as to how it wished to conduct its affairs.

The preachers rejected the plea not to make noise and rejected the invitation to attend at the kgotla whilst continuing with the noise and breach of peace within the community over three successive nights. They further resisted attempts to confiscate their noise causing equipment. It was at that point that they were disciplined by bogosi in the Setswana way of Go Kgwathisa on Saturday 10th April 2010. They were disciplined for extreme disrespect for the law, the community of Mochudi and critically for aggravated disrespect for dikgosi. They have continued to refuse to attend at the Kgotla for dialogue preferring to articulate their grievances through a media campaign. Their civil case launched by the Church against Kgosi Kgafela and Bakgatla tribal community is before the High Court for determination.

Presently there is no court order of the High Court interdicting Kgosi Kgafela in respect of any matter concerning Family of God Church. The Court Orders which the Church desires have not as yet been granted but the media has falsely reported the order of 26th April 2010 as if judgement has been passed against Kgosi Kgafela II when that has never been the case. The false reporting is presently the subject of contempt of Court proceedings before the High Court due to be heard sometime in the near future.

According to the report given at the kgotla meetings, the disciplinary measures imposed upon Mr Mooketsi were so carried out on account of Mr Mooketsi’s gross contempt for and insult of Bogosi and the kgotla at Mochudi, despite all the respect accorded to him by Bogosi. He had been respectfully called upon to attend before bogosi in order to discuss incidents of theft he was reported to have been involved in. He rejected the call in a manner amounting to gross disrespect and treated bogosi with the highest degree of contempt. All this happens against the backdrop of numerous complaints by Bakgatla livestock owners to the Botswana police and the prosecution that Mr Mooketsi has been and continues to terrorise farmers by stealing their livestock with impunity, without any of the reported cases taking off the ground in a meaningful prosecution.

On 21st May 2010 the prosecution registered the case on assault against Kgosi Kgafela and other dikgosi without any prior notice to those accused. The case registration and the charges were discussed in the media on Sunday 23rd and Monday 24th May before Kgosi Kgafela and co-accused were actually served with the charges. It is reported in the daily news of Monday 24th that the prosecution gave the media an interview outside Court concerning the charges before they were served. It is irregular, highly improper and unacceptable for an accused person to receive notice of charges against him through the media. This irregularity is regrettable and has been brought to the attention of the Director of Public Prosecution to take appropriate action. The DPP has been notified also of the apparent improper behaviour of the prosecutors assigned to the case who evidently seem to have personalised the prosecution.

Kgosi Kgafela, Morena Mmusi and co-accused were due to attend mention of the case on 31st May 2010. Following communication between the legal representatives of Kgosi Kgafela and the prosecution on Friday 28th May and during the weekend thereof, agreement was reached with the prosecution that Kgosi Kgafela and Morena Mmusi could be excused from attending the mention to allow them to travel to South Africa to consult advocates. As such Kgosi Kgafela and Morena Mmusi were absent from Court on 31st May on account of this understanding. This agreement was confirmed by the prosecution and defense in chambers before magistrate Mr Lot Moroka, who accepted and confirmed the agreement. The position changed in open Court when magistrate Mr Moroka issued a warrant for the arrest of Kgosi Kgafela, Morena Mmusi and others for alleged contempt of Court in failure to attend despite the foregoing set of circumstances. The warrant of arrest has since been discharged as well as the interim finding of contempt.

The decision to issue the warrant of arrest was a most unfortunate one with serious potential to cause instability of great proportions. This office wishes to thank all Bakgatla for maintaining calm and collectiveness during the life of the warrant and subsequently. We wish to prevail upon all Bakgatla and the public to observe agreements reached at the kgotla including our agreement to maintain our cool and sober mindedness throughout the present legal and other challenges before us; for, ours is a course of truth and we shall prevail, with the power of our minds and souls as opposed to misguided violence and hate.

The public must be assured that Kgosi Kgafela II has been a respectable lawyer of 12 years standing during his days in legal practice who does not carry the slightest characteristics of a disorderly individual. His track record as a lawyer on both the high profile cases he has handled and the calibre of clientele he has represented speaks for itself.

The media coverage of the case concerning Kgosi Kgafela is unfortunate. We find most regrettable the fact that the Court has allowed media photographers to take pictures inside the Court room in such a manner, and with the effect of oppressing accused persons and often depriving them the rare opportunity of consulting with their legal representatives during Court recess. The sight of cameras flashing in Court diminishes the integrity of the Court and justice itself. The appropriate status is that which obtains at the High Court where cameras are strictly not allowed in the Court premises in order to protect the integrity of the Court and respect for those who come before it for justice.

We wish to remind all Bakgatla that we as a community have resolved in numerous Kgotla meetings that we shall henceforth take responsibility for our lives, future and destiny and shall no longer leave that to the control of someone else. Our lives shall be taken forward by consensus at the Kgotla as was meant to be, and not by public opinion in the media.

We insist in inter- human respect within our society with emphasis on respect for hierarchy within the family unit up the social structure to Kgosi Kgolo. Botswana was built on this Setswana culture of respect and shall recover from the present state of disintegration through the same culture of respect. We shall not tolerate any compromises upon this fundamental social norm, especially respect for our dikgosi.

We respect the laws of Botswana and the social values which define our being as Batswana. What we practice in Kgatleng is consistent with (a) customary law as understood by the majority of Batswana, and the High Court in the case of Kgalaeng vs Attorney General (b) findings and recommendations of the Puso Commission, which have been accepted by Government (c) agreement of Bakgatla in various kgotla meetings.
Kgosi Kgolo Kgafela and royal uncles have met and discussed this law and practice with the minister of justice, commissioner of police and various police chiefs in formal consultative meetings, none of whom have expressed a different understanding of the law and custom. The customary disciplinary measures currently pursued in Kgatleng are thus undertaken strictly within this understanding of the law graced by the consultations referred.

We embrace all the legal challenges before us and many more to come as we believe they may provide an opportunity for Batswana to finally define their identity and carve their destiny as a people. In the end of it all, truth shall prevail; for, it is like oil in water: it always finally comes to the surface, irrespective of all prior falsehoods. Unfortunately, our Kgosi Kgolo is destined to endure the hardships, on behalf of all, along the path of truth. That is his birth duty and occupational risk that goes with his position.

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