The High Court judgment in the matter between the state and Bakgatla delivered on 11th March 2011 is a case on point from which we should take life lessons about our reality. Those who attended Court during arguments before the High Court on 20th January 2011 will recall what happened in court concerning a specific issue surrounding the appointment of Kgosi Kgolo Kgafela as Kgosi Kgolo on 20th September 2008. It came to the attention of the Court that following the magistrates court ruling, and moving towards the High Court appeal, the DPP filed (after the event) some letters or circulars published in government gazette, which allegedly were meant to demonstrate the point that (i) Kgosi Kgolo Kgafela requested recognition as Kgosi Kgolo by government, (ii) the government recognised Kgosi Kgolo Kgafela as Kgosi Kgolo and (iii) the government recognised Kgosi Mothibe Linchwe as “motshwarelela Bogosi.” I recall well, as I was in court, that when the DPP attorney sought to pursue this point arising from these letters, Justice Lesetedi in particular told the DPP attorney that she could not pursue that issue because it was not the subject of discussion at the magistrates court. As such the issue was not argued before the High Court, and correctly so because Kgosi Kgolo Kgafela II was never given the opportunity to deal with the so called letters of recognition and appointment either by presenting countering documents and affidavit explanations of his position ( as accused 1) concerning this very pertinent issue . Sadly, despite these set of circumstances, some of us were shocked when we heard in the judgment reading, the length to which Justice Lesetedi went to deal with this issue, which, as I said, and he as judge said in open court, was not before the magistrates court. In dealing with this issue the Court made very powerful findings of fact and law with far reaching consequences. I wish to analyse these findings. The Court made a finding of fact that (i) the office of a Kgosi Kgolo exists in our society. Such person called Kgosi Kgolo sits at the apex of society and is respected, or rather should be respected as such, (ii) the office of Kgosi Kgolo is recognised by Government, (iii) when the Government recognised Kgosi Kgafela II, they recognised him as Kgosi Kgolo, however (iv) the office of Kgosi Kgolo is nowhere to be found in our Botswana constitution and all legislation made under it; yet it exists! Now we must all remember what the appeal to the high court was all about.
It was about identifying and defining the nature of the responsibilities and powers of a person – who exists in our society- occupying the office of Kgosi Kgolo, which according to Judge Lesetedi, stands for King. The question on appeal, as I understood it, having followed the case, was not the determination of the powers of a person occupying the office of Kgosi , but determining the powers and responsibilities of Kgosi Kgolo. There is a huge difference here which fortunately the Court itself recognised. It is my opinion, and my opinion alone, that the Court correctly found that the office of Kgosi Kgolo did not exists in the written constitution of Botswana. That, fortunately, confirms what many Batswana, particularly us Bakgatla, have been complaining about, namely that our cultural ways of life and fundamental institutions like Kgosi Kgolo are not recognised nor protected by the colonial constitution of Botswana. This is really the heart of the matter. The Court went the extra mile to confirm to all of us that, even customary law, is not defined in the colonial constitution. These are the two most powerful confirmations of our plight ever to be made by our honourable High Court. This in my view fortunately paves the way forward in our struggle for a new constitution. However, what I found profoundly amazing was the angle taken by the Court. Instead of the Court taking time to explore and educate us all on the fundamental question before it ( i.e. the nature of this existing office of Kgosi Kgolo ), the Court veered off course to determine a question not before it i.e. the powers of Kgosi in terms of existing legislation. The appellants asked the court to determine the powers of Kgosi Kgolo, not of a Kgosi.
In exploring unsolicited questions the Court ended up pursuing avenues and traversing areas of law and public administration which resulted in embarrassing conclusions. This was so to a point where the Court ended up saying that the minister, who recognised Kgosi Kgolo Kgafela II as Kgosi Kgolo made a mistake and should not repeat such error. I say this with respect, that such a statement has embarrassed many Batswana who have been following the case, and must similarly have embarrassed the entire cabinet, all Dikgosi Kgolo of this country and pertinently, the president of the country who similarly is Kgosi Kgolo, and was a key participant in the enthronement of Kgosi Kgolo Kgafela II, as Kgosi Kgolo and not just Kgosi. This conclusion was arrived at without the Court asking the minister whether she perceived herself to have made a mistake or whether there was some other logical explanation not necessarily amounting to mistake. We ask ourselves; really, on what basis was the court justified in arriving at the conclusion that such was a mistake on the part of the minister, president and all those who attended the enthronement of Kgosi Kgolo Kgafela II, including the past and present Chief justices. This finding by the Court illustrates the hypocrisy of our governance system, now manifest in the judiciary, where law and policy remain far out of synch with realities on the ground, and where the highest Court can make such pertinent findings of fact without any evidential basis. In my lay man’s mind, I was truly expecting the Court to take us through a journey of judicial intellect where the central question would have been this: on the ground, in our daily lives, we have this office of Kgosi Kgolo (King) which most people in Botswana recognise. This office of Kgosi Kgolo is not written in the constitution or other written laws of Botswana. But since every human relations in Botswana should be governed by law, then which law governs and regulates this existing institution if the constitution does not?
It is not sufficient to answer this question by firstly admitting the existence of the office of Kgosi Kgolo, and thereafter denying its existence simply because it has not been covered by the constitution and written law. Surely, Batswana have been in existence before 1966, existing with an elaborate and working system of laws and governance policy for hundreds of years. It is therefore difficult to appreciate any argument that suggests that anything not covered by the Botswana colonial constitution and not covered by written law does not exist; thereby justifying a position of calling it that which it is not. Kgosi Kgolo is Kgosi Kgolo period. He is not just Kgosi but Kgosi Kgolo. Nothing can justify legal treatment of him as simply Kgosi when the facts before the Court say he is Kgosi Kgolo. Even the case citation when the case was called referred to him as Kgosi Kgolo. When asked to define the nature of cat, it is impermissible to substitute your task by defining the nature of a dog, simply because you cannot see the cat in the written laws, as if the written laws are all that is available to aid your task. It remains a cat and must be treated as such if we are to understand what it really stands for in our lives. This is what the appeal was all about, for us to understand the nature of this office of Kgosi Kgolo (the cat-leopard/lion) and not the nature of the office of Kgosi (the dog). Thus, my expectation was for the court to identify the law that governs the office of Kgosi Kgolo; and explore that law, to its deepest depths to find out exactly where the office of Kgosi Kgolo fits in the general scheme of things in Botswana. At the magistrates Court it will be recalled that there was a debate where the magistrate ended up finding that Bogosi was a creature of statute (i.e. an institution that was given birth to by an act of parliament). In my view that was an incorrect finding both legally and factually.
Bogosi has existed before 1966 and will survive long after all the politicians, magistrates of today and judges are gone. The High Court has confirmed this position in this way: Whilst statutes exist which regulate Bogosi, we now know for a fact that there are areas of Bogosi (e.g. office of Kgosi Kgolo) where the statute law including the constitution has not covered. It was the duty of the High Court to educate all Batswana on this very critical area of law raised by Kgosi Kgolo Kgafela II and others in their appeal. The High Court has not done so, but instead has said that the raising of this important point by our Kgosi Kgolo is frivolous and vexatious. These words, frivolous and vexatious are powerful words which must not be taken likely. I will make them the subject of my second follow up article to this critique. But speaking for myself I think the issues raised are so fundamental and key to the lives of Batswana such that I really find it an insult to the intelligence of all Batswana following this case to suggest that the issues are vexatious or frivolous, by any standards. The point here is that I may disagree with your point of view on any matter but my failure to persuade you to see eye to eye with me does not mean that my raising of my point of view, or your pursuit of your point of view is necessarily frivolous or vexatious; otherwise the loser in any litigation will be said to be frivolous and vexatious. I urge the reader to look at the dictionary for himself to see whether his understanding of this case places it within the category of frivolity or vexatious-ness. Interestingly, the Court did not attempt to define these words for all of us present to hear what they meant in the context of the case. There is a real danger lying in every path of a Court pursuing issues that were not canvassed at a lower court or issues not placed before it by the parties. The danger is that the Court is likely to make factual mistakes owing to insufficient evidence or material before it because the parties shall have not applied themselves to the issue. In this case, the Court found, without any evidence, that Kgosi Kgolo Kgafela II had abdicated his authority to kgosi Mothibe as motshwarelela bogosi, and that only Mothibe had authority to discharge the functions of kgosi. The embarrassing reality is that Kgosi Mothibe has been the president of the customary Court of appeal for more than a year now. He is not a motshwarelela Bogosi. In fact, there is no designation, or officer occupying the designation of motshwarelela Bogosi within the bogosi structure of Bakgatla ba kgafela, in terms of Government’s own records which the Court, as another arm of Government, should have access to.
Furthermore, I am aware that during the conflict between government and Bakgatla concerning representation at ntlo ya Dikgosi, correspondence was generated from the office of Kgosi Kgolo explaining the position of Kgosi Mothibe, particularly that Bogosi jwa Bakgatla had no motshwarelela because Kgosi Kgolo was present performing his functions as Kgosi Kgolo. This correspondence obviously was not and could not have been placed before the High Court because such simply was not the issue or matter before the Court. Moreover every Motswana anywhere in Botswana can see for themselves that Kgosi Kgolo Kgafela II is alive and present at his kgotla and present within his community performing the functions of Kgosi Kgolo, despite the High Court finding to the effect that he has abdicated his position to Mothibe. We, ordinary members of the public, are now asking ourselves many questions about what this High Court judgment was all about; given just the few examples I have dealt with in this article. These examples clearly show a factual departure from what obtains on the ground in our daily lives, and show a dramatic departure from what was before the Court for determination. The Court simply frolicked and failed to deal with the submissions made by Professor Brassey acting for the accused persons. WHY this departure, remains the question in us all. What is really going on here? Ke nako!
