Thursday, October 22, 2020

BDF couple first to challenge army fraternisation policy

Solely on the basis of digital footprint, there doesn’t seem to be evidence that anyone anywhere in the world has challenged army policy that prohibits romantic relationships across officer classes. 

Like other armies around the world, the Botswana Defence Force (BDF) has developed what it calls a Fraternisation and Sexual Harassment Policy which has been brought under controversial spotlight by a couple which is deemed to have contravened it. The couple, Tlhabang Thapisang and Kozondu Uariua, has been kicked out of the army because the former was a second lieutenant and the latter a private. Explaining this policy in court, Advocate Major Abel Motaung from the BDF said that officers (Second Lieutenant up) are not allowed to date non-commissioned officers (Warrant Officer Class 1 down) and that even within the two officer classes, officers cannot date if they work in the same unit or regiment.  Whereas other soldiers around the world are resigned to their fate, Thapisang and Uariua are taking matters into their own hands and could be in the process making some more history.

The outcome of this matter could have implications for other armies around the world because judgements from the Botswana High Court have been cited in foreign jurisdictions. In a 1997 rape case, the Lesotho High Court cited the judgement of Clement Gofhamodimo who more than a decade earlier, was found guilty of murder and hanged. In 2013, the Kenyan High Court cited the 1984 decision of the Botswana High Court in a matter relating to an electoral dispute. The Kenyan court referred to judgement in the case of Sethantsho versus Jankie and Another where the Botswana court had struck out a petition because it was filed out of time. Many more judgements from Botswana have been cited in other foreign jurisdictions but the High Court may be limiting its influence in this regard because its law reports take extremely long to be published.

It is yet unclear what view the court will take with regard to the relevance of BDF’s Fraternisation and Sexual Harassment Policy. In 2012, Thapisang and Uariua were ÔÇô in terms of this policy, court martialed for “engaging in an inappropriate relationship.” Upon discovery (two years later) that they were still together, the army commander dismissed them. The state contends that the review application that the couple has brought relates to the dismissal and not the 2012 disciplinary process where the policy was a prime factor. The couple’s lawyer has maintained that the policy is relevant, noting that the state itself makes ample reference to the policy in its own case.

On the whole, BDF’s fraternisation policy appears tame compared to that of the United States Army which also prohibits personal relationship between officer classes relating to “business enterprises, commercial solicitations, gambling and borrowing” between officers in different categories.
 

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