I have attended almost every court cession since the constitutional challenge trial started at the magistrates Court last year June. What I have seen throughout the Court proceedings is not any different from the experiences observed in a mock Court of injustice trial.
When the case started at the Court of Ms Brown certain Court orders were made which were reinforced by subsequent orders made two months later by magistrate Mrs Oahile ÔÇô Mokibe on 29th August 2011. These Court orders directed the state to produce and deliver certain documents that would assist the accused persons to prepare their defence against the constitution.
To date the State has not complied with the Court orders and has failed to give an explanation for its failure to comply. This is alarming.
The constitutional case was finally heard by the High Court on 29th March 2012 in the absence of the documents required and in clear view of the non-compliance. I have heard Kgosi Kgolo Kgafela complain about this non compliance in Court several times, at the Magistates Court in October last year and at the High Court on 1st December 2011, 1st March 2012 and finally on 29th March 2012.
Both Courts have failed to address the non compliance, one blaming the other and each finding excuses on the basis of what the Court of appeal has allegedly ruled, without any papers from the Court of appeal. The Courts have sidelined the issue of non-compliance much to the surprise of us ordinary citizens who have grown to believe in the integrity of Court orders as coming first above everything else.
We now stand in a final situation where the most important case in the history of Botswana has been decided with alarming speed of judgement in 15 minutes after submissions, without the benefit of the documents ordered. What is in those documents and what is the government hiding?
An ordinary member of the public is left with questions in his mind about the presently undisclosed reasons as to why the state has not complied with Court orders and why the Courts have left that situation un-reprimanded. There is reason to believe that the state waited all these nine months without complying knowing that a judge in a higher Court would find justification for them later.
When the case was called for the first time on 1st December 2011, it became clear that justice would fail. The Court converted an obvious criminal trial we have been following into a civil case. Kgosi Kgafela warned us all of the injustice that would follow from that conversion in the letters he wrote to the registrar of the High Court and published in the media for us all to see.
True to his fears, the conversion of the case from a criminal into a civil trial had the results he warned about in that he and others have been denied the rights of accused persons in a criminal trial. His co-accused were completely isolated from the proceedings and denied an opportunity to say anything in the constitutional case until it was dismissed. Worse of all fears was the orders to pay costs which Judge Mr Tafa foreshadowed on 1st December 2011.
As I write now the defence raised by Kgosi kgafela in the criminal trial has been dismissed with costs. This is unusual to have a costs order made against an accused persons upon dismissal of his defence. These costs orders unjustly oppress accused persons.
During submissions before the High Court on 29th March 2012, the points made in Setswana language by Kgosi Kgafela were so clear for a lay person to understand. We understand it is the Courts duty to interpret the constitution. Such interpretation includes an interpretation of its character, whether it is a living, dying or dead tree, or whether it is a fraud or a mastery of art. Surely if the Court has the power to interpret the constitution by calling it a living tree, it should have the same power to call it a dead or dying tree as a consequence of FRAUD.
Courts are ever so quick to say glorious words about the Botswana constitution but when they are called upon to say something distastefully different under the same powers, something such as fraud, they say they don’t have the power to interpret it according to the evidence before them. This contradiction is shamefully unfortunate.
Kgosi Kgafela asked the Court to interpret the constitution and define its character as a fraud and thereafter declare his rights in relation thereto and give such remedies as may be available from all the evidence, including the suppressed evidence. What is so difficult about this straight forward request?
My opinion is that the Court has committed a grave injustice of rushing to dismiss a case of such enormous importance to the people of Botswana without looking closely and taking time to reflect on what was being asked of it for the sake of the future generations. The Court unjustly focussed on the single remedy of setting aside the constitution, and then disposed of the baby with the bathwater. We still have the fraud to live and deal with in our daily lives and crucially at election time.
It was pointed out correctly in the High Court on 29th March and at the magistrates Court on 2nd April that a case is not only about the remedy but it concerns a whole cause of action under which multiple remedies may ordinarily follow at any stage.
Had the documents required by Court order been produced it was legally permissible that such documents could have assisted the Court with a wider scope to see how best to help the people of this country against our common complaint – the constitution. The affidavit of 29th September that is in the public shows a desire to broaden the scope of the case with the assistance of the documents ordered once delivered. The fact that this so important case for Batswana has ended this way, on pure technicalities and under the dark shadow of suppression of the TRUTH through non compliance with Court orders, will forever leave a permanent stain in our present day judiciary.
No amount of justification nine months after the fact of default can remove this stain, or persuade even the most naïve citizen that justice has been served. This experience on its own has defined the character of our judiciary for all to see.
All mistakes made in the case arose out of a preoccupation with an individual as opposed to the national course. The preoccupation is self evident in most of the judgements of the Courts since 2010 and in the facts of an unnatural persistence by the Courts to have the trials of Kgosi Kgafela heard in Gaborone in respect of events that took place in Mochudi. This alone is contrary to the law, philosophy and mission statement of the Courts of Botswana.
They say they fear security in Mochudi because a kgosi is on trial, without any evidence to substantiate their fear. Strangely, in another breath, the Government and judgment of the High Court says they do not recognise the status of this same Kgosi who is the subject of security issues raised by the Court?
Contrary evidence in the public eye shows there is nothing to fear at Mochudi. All the accused persons and all well-wishers who have been attending Court have maintained a peaceful image throughout and have consistently preached peace even during the most volatile time of the imprisonment.
The accused have been requesting the relocation of their cases to Mochudi because the law of the Courts and justice demands that and because they simply cannot afford travelling to Gaborone anymore. There seems so much unexplained difficulty with this straightforward request. It worries me where Courts do not enforce their own orders and cannot uphold their own fundamental laws that define fair trial.
The attitude of our Courts is worrying. What is going on in our country? This constitutional challenge and what went on in Court leaves no doubt in the eyes of a case follower, that justice has come to an end in Botswana because of the constitutional fraud complained of. Injustice to one is injustice to us all Batswana including the family members of those who carry out the injustice.
Suppression of the truth in a constitutional case affecting us all is the worst injustice ever to be committed against a people. Disobedience of Court orders by the state in order to suppress the truth is the dawn of anarchy. This is happening in our own Botswana Courts before our eyes as it happened elsewhere in Africa.
Injustice escapes public scrutiny through carefully staged media propaganda, that reports on Court proceedings in such a way as to conceal the injustice, whilst intensifying decoy attention on the one individual, and not the cause.
This is a case that should have been televised for all to see or conducted in an open forum, or availed to the public one way or the other, as is done in countries like South Africa. This is what open justice is about. We need to all pay close attention to these lessons on justice and unite against injustice. We need to start to focus public scrutiny on our judiciary, the circumstances under which its members are appointed and the manner by which they handle cases of such great importance. We wait to see how the case unfolds at the magistrates Court or how any appeal may be handled by the Court o appeal.
Ke Nako!
