Two years ago, Kgosi Kgafela was installed as the Paramount Chief of Bakgatla. Batswana from all walks of life joined Bakgatla as they celebrated the beginning of a new chapter in the history of their tribe. Kgosi Kgafela was taking the baton from his father, Kgosi Linchwe, who departed this earth after serving his tribe and the nation diligently and with aplomb. He was a well respected man, viewed by many people as an embodiment of Bakgatla culture. People liked him because he never hesitated to call a spade a spade. Who can forget his responses when he was asked to comment on the manner in which people use dagga or on the issue of homosexuality?
Immediately after his installation, Kgosi Kgafela reintroduced initiation schools that were stopped by his father more than twenty years ago. Thousands of men and women, young and old, educated and illiterate, rich and poor, heeded his call and enrolled. The overwhelming response on the part of Bakgatla tribesmen and women clearly demonstrated that they are indeed proud of their culture.
We are reliably informed that besides being taught how to be good husbands and wives, discipline and total respect for the chief are critical components of the initiation schools’ syllabus. Hence, it is not surprising that in an attempt to instill discipline, Kgosi Kgafela unleashed members of the Madibelankwe regiment on his people.
People were flogged irrespective of their age or health status as evidenced by the fact that a man in his fifties and a pregnant woman were beaten up by Madibelankwe. Due process was deliberately ignored as people were never charged or given an opportunity to defend themselves at the kgotla as expected. We were told that everything that was happening in the Kgatleng district was done according to the culture of Bakgatla. Flogging, according to some Bakgatla, is part of their culture.
But as we all know, this argument is flawed and absurd because flogging has never been something peculiar to Bakgatla. Almost all tribes in Botswana flog people for the various offences that they commit. But unlike in the Kgatleng district, due process is followed.
It is sometimes embarrassing to hear people who have stayed long in school saying that it is right for citizens to be beaten up without following due process simply because they are trying very hard to defend and to endear themselves to their chief. I have realized that when the issue of flogging or anything related to Kgosi Kgafela is discussed in public, some Bakgatla tribesmen and women literally remove their thinking caps and argue like people who have never seen the inside walls of a classroom. They become so emotional and end up presenting their arguments in a very childish manner. Some of them behave and reason in such a manner that one can easily mistake them for being the first and the only tribe in the country to have a Paramount Chief.
I am one of the people celebrating the judgement that was delivered two weeks ago by a panel of three judges who were handling the case brought before the high court by Kgosi Kgafela, Mmusi and others. The judges made it very clear that the constitution of our republic protects all citizens from any kind of inhumane and degrading treatment. They went further to state that Kgosi Kgafela has no power to flog people without following due process. Just like other Paramount Chiefs and their subordinates, he is expected to operate within the parameters set by the country’s constitution. Customary law has to be practiced without contravening any section of the constitution.
According to the judges, Kgosi Kgafela has no power to unleash members of the various regiments that exist in the Kgatleng district on the people that he leads. Mephato, as explained by the three judges, have no place in the structures of the modern society that we live in. They can never be used to arrest people as the power to do so is given to the police officers. They can never be used to prosecute people at the kgotla or around the village because they are not recognized by the constitution or any other legal instrument.
The judgment is, without any doubt, a victory for all the people who suffered at the hands of Madibelankwe. It supports the argument that was presented by various public commentators to the effect that what Kgosi Kgafela was doing in his administrative district was unlawful and uncalled for. Most importantly, the judgement is a reminder and a warning to all those who are tasked with the responsibility of interpreting and enforcing customary law that failure to observe and uphold the country’s constitution can never be accepted under any circumstances.
They should know that people can never be subjected to any form of inhumane treatment under the guise of enforcing customary law or instilling discipline. Paramount Chiefs and their subordinates may hate certain sections of the constitution that they believe prevent them from promoting the culture of their tribes or maintaining law and order within their localities. But that does not give them the right or an excuse to act outside the confines of the constitution. And this is simply because ours is a republic governed by the constitution, not customary law. In other words, we subscribe to the supremacy of the constitution, not customary law.
I have no doubt in my mind that the judgement is a serious set-back for Kgosi Kgafela and company. One thing that is of great interest to me is the manner in which they will respond to the ruling made by the High Court that they should appear before the same Magistrate that they defied and disrespected sometime last year. After ruling that they be remanded in custody for failing to comply with all their bail conditions, they ignored his word and went home only for them to surrender to the police after a few days.
It is very unfortunate that when Madibelankwe went berserk, causing grievous bodily harm to citizens, Ditshwanelo decided to look the other way. Is this not an organization that was established to protect and promote the fundamental rights and freedoms of all citizens as enshrined in the constitution? If so, why were its leaders quiet when people’s rights and freedoms were flagrantly disregarded by Kgosi Kgafela and his lieutenants? Why was the issuance of a press statement condemning their unlawful acts such a difficult task for the leaders of Ditshwanelo?
*Dr. Mothusi teaches Public Administration at the University of Botswana
