The opening paragraph of Kgosi Kgafela II’s letter of 10th February 2012 to Ray Molomo makes no secret that the writer is angry with the addressee. It gives the reader the sense that whatever the addressee may have said or done to the writer, it closes all avenues of ever seeing the two men work together. It is war of words throughout with almost all paragraphs of it hitting hard. Before going to specific issues being discussed in the said letter, it is necessary to remind or introduce the reader to what the quarrel is about and how it started.
On 6th of February that same year, Kgafela wrote to Ray Molomo asking him to depose an affidavit which he needed for his case against the Attorney General of that time, Dr. Attalia Molokome. Ray Molomo had apparently told Kgafela verbally something the Attorney General had said about Kgafela’s 2011 disappearance from magistrate court at village in Gaborone. Kgafela and others surrendered themselves to the police some days after. Kgafela did not take kindly to what Molokomme had allegedly said about him and threatened to take the matter with the court or the judicial Service Commission. Molomo promised to provide such an affidavit.
However, on a second thought, he changed his mind questioning Kgafela’s leadership style. This is where the problem begins. In my last article, I gave Molomo’s views prominence and undertook to give Kgafela the right of reply in the next article. This is the article and this is the hour. From the time that I started witnessing Kgafela arguing his clients cases in courts, I formed the opinion that he was a fighter. Indeed he was. He presented his cases in such a way that you would admire him on first sight. I saw him arguing the case of Justice Maruping Dibotelo versus Mmegi Newspaper steadily and constructively the other day at the High Court in Lobatse. It was a defamatory matter. It ended with Justice Chatikobo awarding Dibotelo a substantial amount of money in damages and ordering the newspaper to pay the costs. That was good for Kgafela and client.
The second case was the Isaac Davis versus the State appeal case. He lost that case but the way he presented and argued his case was marvelous. The case was something to do with the use of insulting language. In defense of Isaac Davis. Kgafela said “Bakgatla are casual with insults”, meaning that whatever Davis could have said to whoever, was not seen as insult among the Bakgatla people.. I was seated in the press gallery. He invited the judge to confirm the truthfulness of what he had told the court with me as I was a Mokgatla readily available.
The next case was that of the two Basarwa men who were left with a few hours before being hanged. They had been convicted and sentenced to death. Tlhabologang Mauwe and Kwara Brown had been sentenced by the High Court. They appealed and lost. They asked for clemency but that was refused. At what stage of the case did Kgafela enter the scene is unclear. But he was certainly uninvolved at the trial and appeal stages of the case. Probably he was drawn in by Ditshwanelo, the Centre for Human Rights at the tail end of the case. He went through the record of the case and concluded that the two were not adequately represented. He then consulted with Advocate Brian Spilg of South Africa. He came and forced the reopening of the case as he thoroughly and superbly argued in favour of the two condemned men. The two men’s graves had been dug already. They avoided hanging by the skin of their neck as they finally were released.
Kgafela was also involved in the Marriette Bosch case. Again he entered that case at the very last stage as it was Fashole Luke at the trial stage and Desmond da Silver of England at the appeal stages. Here again, he was involved into the case by Ditshwanelo. It was too late for tears. His involvement did not help to free Marriette Bosch as she ended up being hanged.
Having dealt with factors in support of why I opined that Kgafela was a fighter during his days as a practicing attorney, I now return to his letter to Molomo. In that first paragraph, he tells Ray Molomo that his letter did not solicit, nor was intended to solicit “your political opinions about my style of leadership”. He says he did not ask Molomo to fight or give evidence against Dr. Molokomme, nor did he ask him to give evidence in his constitutional challenge case because Molomo made his dissenting position earlier in their meeting clear in regard to that case. He reminded Molomo that nonetheless he had given an undertaking to provide evidence by way of affidavit. “You are now turning against your word sir and seeking to find justification for your new position in regard to your evidence, by pursuing a detour of issues that are totally irrelevant to the specific request of my letter”, said Kgafela to Ray Molomo. He states that if Ray Momolo’s value system allowed him easily to turn against his word, that was his problem that he would have to deal with in a court of law.
He reminded Molomo that they were dealing with a very serious matter of law, facts, justice and due process, in a system of governance that should be democratic, but yet “corrupt at the core of the justice department”. “This is what my application against Dr. Molokomme is about,” said Kgafela, adding that, “if you choose to ignore this reality, that again is your problem”. Kgafela further threatens Molomo with a subpoena. He says, an appropriate subpoena will be given to him at the right time to attend court to give evidence he undertook to give. He said they could not allow national issues and important matters of justice to be handled at the level of gossip without people taking responsibility for the things they had said. Kgafela tells Ray Molomo in that letter that he was not in wild-goose chase as Molomo had said. He said the public was generally waking up to the “fraud perpetuated upon them on continuing basis by your government”. It is clear in this letter that although Kgafela was still a Motswana, he did not consider the Botswana Government his. He says Molomo was unable to see the response he was receiving from other tribes and their leaders because he has refused to see things from his perspective.
Kgafela told Molomo that he found the former Speaker of Parliament’s condescending statement of unsolicited opinion rather “insulting and out of line”. According to the letter, Kgafela informed Molomo that he was being prosecuted and persecuted “by your Government for things I have not done whilst your colleagues in cabinet are running this country down without they being prosecuted for the more serious offenses they are committing”. The constitutional challenge, said Kgafela, was about him and others defending themselves in the best way they could within the same legal structures “of your Government”. The challenge is brought about by a way of an exception to criminal proceedings in terms of Criminal Procedure and Evidence Act. ”If I did not take this Exception” he says, “your government was going to come for me and Bakgatla Royalty again and again with more and more charges and persecution, deriving authority from the same Constitution”.
It seems that as he was busy writing, Kgafela got angrier with Molomo. Of course being told by one of your subjects that you as a Kgosi, you don’t have good leadership qualities may be annoying. Only Molomo had the guts to question Kgafela’s leadership style. Perhaps that was why Kgafela wanted to make his point crystal clear when he said, “If you cannot see this conspicuous reality Sir, then I was right that your divided loyalties make you unsuitable to advise me or Bakgatla on any matter concerning our struggle against the BDP government”. Kgafela’s letter continues, “I have told you Sir, in the presence of other elders here at our kgotla that you are not qualified to advise me on issues of traditional leadership and where I should take Bakgatla when your loyalties are with our enemy”. He has also told Molomo that he had been warned by some Bakgatla that Molomo was a traitor and should be avoided. Towards the end, Kgafela reminds Molomo that he is not a child and that he should never write to him as if he does not know what he is doing. To do so, he says, is to “insult my intelligence when I have shown due respect to yours”. He concludes by advising Molomo to keep their correspondence safe, as it would be relevant to his evidence in court and before the Judicial Service Commission, adding that he intended to engage Dr. Molokomme all the way. Although Kgafela maintains that Batswana were not consulted when the Constitution was drawn, Molomo argues to the contrary. He makes that clear in his book, “Democratic Deficit in the Parliament of Botswana”. Sir Peter Fawcus and Alan Tilbury appear to be of that opinion in their book, Botswana: The Road to Independence.
