It is necessary that we should take time to critique the judgments of our respectable high Court judges especially those that touch on a matter of public interests. Our politicians and various members of our society are quick to discourage debate on Court proceedings on the basis that a matter is sub-judice (still before the court) yet the media who attend court are ever at liberty to write and opine about court proceedings.
I am encouraging my fellow countrymen to adopt the habit of critiquing Court judgments because it is your right and duty to do so if we are to achieve a link of accountability between the people and the justice they receive. Respect for the subject of critique and respect for justice are the only yardsticks by which critiques of Court judgments are to be limited. In fact it is common practice in more developed countries to critique judgments in journals and media fora. So today I would like to continue with the critique of justice Lesetedi’s judgment focusing on two main points, firstly the language issue and secondly the words frivolous and vexatious, which also go towards the language issue. Those in Court when judgment was read noticed that all present in Court including the three judges and their staff were black Batswana; yet, the judgment was read out in English alone without any translation, at least for the benefit of some of the accused persons who do not understand English. Pertinently the language was not just any ordinary English but legal English. The majority of people who attended Court, the ordinary Mokgatla man or woman did not follow what went on. It is the same with the submissions. We must come to terms with the reality that this arrangement is not proper. It is ridiculous.
Foreigners are laughing at us. It is truly embarrassing us Batswana. But fundamentally, it denies Batswana access to justice because the Queen’s language is not easy, even to the learned. The appeal of Kgosi kgafela II and others was dismissed on the basis that their raising of constitutional issues was found to be frivolous and vexatious. Now let us see how Webster’s dictionary defines these powerful words of the Queen’s language. The word frivolous is defined as “of little weight or importance…..lacking in seriousness….marked by unbecoming levity.” The word levity is defined as “excessive or unseemly frivolity”. The reader who has been following this case must ask themselves whether the issues raised by kgosi Kgolo kgafela II and co- accused can be said to be lacking in seriousness, or of little weight. Well, I personally don’t think so because if that were the case, then the court would not have been so troubled with the issues raised to the point of failing to grapple with the fundamental issue before it ÔÇô the powers of this institution of Kgosi Kgolo which is present in our society but absent in the constitutional framework of the colonial constitution of Botswana. If the issues were “marked by unbecoming levity” the court would not have considered a need to traverse areas that led to embarrassing conclusions such as that the minister made a mistake when recognising Kgosi Kgolo Kgafela as Kgosi Kgolo. The court would have arrived at a very simple solution to show how light weighted the issues were.
The plain truth available for all to see is that the issues raised are not frivolous. In fact, to suggest that these issues are frivolous really insults the intelligence of thousands of Batswana who are craving to know where their Kgosi Kgolos and where their cultures stand in the colonial constitution of Botswana. This attitude is no different from the Rre Merafhe’s casual cowboy style to fundamental issues by saying “ why fix it if it is not broke”, or the classic “one or two killings will not harm the image of Botswana “ . The word vexatious is defined by Webster as “…..causing vexation….Distressing…..intended to harass…..full of disorder or stress : Troubled”. The word vexation is defined as “the act of harassing or vexing ….Troubling…..the quality of being vexed : Irritation…a cause of trouble : Affliction” . Now is it really correct that the constitutional points raised by Kgosi Kgolo Kgafela II and others carry the characteristics of vexatiousness as defined above. Well, I don’t think so at all , given the seriousness of the issues and the determination by which they are being pursued by the appellants and the enthusiasm they attract in the public as evidenced by the numbers of people who attend court and the media coverage received. In fact, I really find it insulting to all of us who await a progressive conclusion to this case, for there to be the slightest suggestion that our Kgosi Kgolo is merely “harassing or troubling the state”, or that his actions are “full of disorder or stress”.
I do not believe for a moment that any part of this monumental case can ever be said to fit the description of vexatiousness. A friend of mine said something interesting. He said it depends on who is speaking the words. If it is government speaking then obviously they will subjectively feel harassed and troubled by any point that exposes the truth that they may not like. But objectively speaking I really do not see how such important points that go to the very foundation of this country’s governance structures can seriously be said to be frivolous of vexatious. The Queen’s language is not easy. That is why it is important to rely on our own languages and ways of life so that we can all be on the same page about what we talk about. We must ever be astute to consider legal developments carefully as a people rather than rushing to cheer someone’s apparent downfall when we receive news of an important case being dismissed.
Those who have read the article in the gazette newspaper a few weeks ago, that reported about how Batswana were duped into independence without consultation, and those who were present at the kgotla meeting in Mochudi of 29th January 2011, should now have a clearer idea of where this Bakgatla case is heading and why our Kgosi Kgolo called this criminal case a starting warm up, and why after the Lesetedi judgement our Kgosi Kgolo announced that it was a good judgment for our course. This is a course for all Batswana, save of course, those that are still asleep and have not seen the light at the end of the tunnel. Wake up, watch and participate in the transformation process underway. We want to be ruled in accordance with our way of life, not imposed colonial values which produce hypocrisy at every step in our daily activities. Why are we holding so fast to difficult ways of life and a difficult foreign language when we have our own languages which are so rich in wisdom ? “ moseka phofu ya gaabo ga nke a fela lentswe”.. Let the struggle continue. ke nako!
