Amid a huddle of black-robed lawyers who take turns rising from their seats to exchange legalese with the judge during roll-call hearings, two someones sitting on the wooden bench behind the former’s table clearly stand out in their civvies. Hair styled in a medium hi-top fade, he is decked out in a charcoal suit and an open-necked shirt. Every inch of her face looking as 07:30-pretty as has been elaborately described by the most language-enabled grapevine commentators, she has picked out black pants, topped them off with a black-and -cream-white print jacket and her long cornrow braids are secured in a ponytail manner at the back. Welcome to Courtroom 5 at the Gaborone High Court, Justice Dr. Zein Kebonang presiding.
She is Tlhabang Thapisang, not too long ago a lieutenant in the Botswana Defence Force and he is Kozondu Uariua, a former private who, in the judgement of the High Command, should have restricted his interaction with the former to saluting and not kissing her. Army regulations attach liability to this sort of “fraternisation” and having been put through the wringer of a court martial process and found guilty, the couple was booted out of the army in October last year. In the estimation of the army, “this kind of conduct is by no means in line with military traditions and customs. It greatly compromises command and the senior-subordinate relationship expected in the military with a potential to result in a state of disorder and render the organisation dysfunctional and this conduct can’t be tolerated in the BDF or any disciplined organisation for that matter.”
Thapisang and Uariua’s attendance of court this morning is in service of a joint application to have this discharge reversed. Not only does the ill-starred Romeo-and-Juliet couple want reinstatement, it also wants to carry on its relationship openly in the event the court rules in its favour. One particular concern that would be looming large for them at this point is that they now have a child together.
The full story, as Thapisang tells it in her affidavit, is that some time in 2012, she was hauled before a disciplinary hearing at the Sir Seretse Khama Barracks (SSKB) where she and Mr. Do Right were stationed. The charge was that she was engaged in an “inappropriate relationship” with Uariua. Such relationships contravene the army’s Policy on Fraternisation and Sexual Harassment ÔÇô the bit she quotes in her affidavit prohibits romantic liaisons between officers and enlisted soldiers. As a lieutenant, Thapisang was 11 ranks above Uariua. She was found guilty and fined 40 days worth of pay and when the matter was reviewed, the fine was increased to 45 days. She did indeed forfeit such pay. Her boyfriend was imprisoned for 40 days.
Two years later, Thapisang says that she received a letter from the BDF Commander, Gaolathe Galebotswe, notifying her that “as a result of conduct I had already been tried, convicted and sentenced for”, he intended to discharge her from the army. She argues that the dismissal constitutes double punishment for the same offence contrary to the double jeopardy principle. The latter protects individuals against being prosecuted for the same crime twice and is provided for in Section 67 of the BDF Act.
Thapisang wants the court to place the Policy on Fraternisation and Sexual Harassment under judicial scrutiny because her conviction is that it stands at tension with the law. In her papers, she argues that this policy doesn’t form part of any subsidiary legislation or valid regulation of BDF as its promulgation was not in conformity with and in terms of the BDF Act. She says that there is neither an army regulation which prohibits romantic relationships between soldiers except this “unlawful” policy nor a provision in the Act that states that engaging in a relationship with a colleague is a punishable offence.
“In the event, the policy is valid and lawful, the provision in question will not pass the non-discrimination constitutional requirement as it unjustifiably discriminates against commissioned officers from having relationships with other members of the defence force, unlike their counterparts who are enlisted personnel,” she further argues.
Section 65 of the Act details possible penalties which can be imposed on soldiers who contravene it. On score of the fact that dismissal from the army is not mentioned in the latter provision, Thapisang is arguing that the army commander “acted outside his powers and scope” by dismissing her.
The other point she raises is that army regulations give the president (who is BDF’s commander-in-chief) or the commander in the event he is the appointing authority, powers to dismiss any officer, if by their actions, has shown that they are not fit to hold the president’s commission. Thapisang says that the commander would only have had powers to dismiss her if he appointed her. In her particular case, she says that she was appointed by the president.
The lapse of time prompted Justice Kebonang to ask the state attorney, Tshepo Kgaswanyane, to give an explanation. In response, the lawyer said that while the couple had been told to end their relationship in 2012, it was discovered much later that they were still carrying on with it.
“But that’s not what the charge says,” Kebonang said.
“There must have been an error,” responded Kgaswanyane in conceding the judge’s point.
The other noteworthy exchange between judge and lawyer was when the former sought to know whether the BDF Act prohibits romance between senior and non-commissioned officers. The answer was that although it doesn’t, there is provision that allows the army to develop policies that cover gray areas. That would account for the promulgation of the Policy on Fraternisation and Sexual Harassment.
By a rigorous Mills & Boon standard that counsels against the BDF putting asunder what the good vibes of Maun hath joined together, Thapisang and Uariua are determined not to let their army service interfere with a personal relationship that – at least by media accounts ÔÇô goes years back. Boy met girl in Maun, the story goes – not in Mogoditshane barracks. One insinuation that has been made outside court is that, Thapisang’s stern refusal to franchise out her affections to an unyielding riot of male top-brass admirers who couldn’t holster their feelings for her is the real reason the couple was kicked out of the army. Careful not to mention names, the lady has herself quoted senior officers delivering to her, as stern a warning cloaked in a “Fifty Shades of SSKB” double entendre whose inelegant meaning adult (and precocious) minds should be able to independently decipher.
“My life changed completely after some BDF officers discovered that I was dating my junior. Some senior officers told me that they will make sure that I am dismissed because ke jesa dijo tsa barena,” she told Sunday Standard three months ago.
In translation, the Setswana means “I am giving away senior officers’ food.” Last year, in a front-page story headlined “Prisoner of Love”, The Voice used a variation of the culinary metaphor when it quoted a BDF source who described how Uariua was suffering the most extreme verbal abuse from other soldiers during his imprisonment at SSKB: “They ridicule him, laugh at him and go on about how he has been punished for eating the bosses’ food.” From the source’s account, the girlfriend, who had earlier been recalled from flying school, would herself have been imprisoned had she not been heavily pregnant at the time that she was sentenced.
Thapisang and Uariua, who seek the same remedy, have consolidated their cases, with the latter deposing to a confirmatory affidavit.
