Sunday, October 17, 2021

Date set for arguments in BDF’s Romeo and Juliet case

After crawling through the judicial system for two long years, the case in which a former army officer, Tlhabang Thapisang and her non-commissioned officer lover, Kozondu Uariua, were kicked out of the Botswana Defence Force will finally come up for argument on October 26 this year.

As other armies around the world, BDF’s policy on fraternisation expressly forbids cross-rank romance and with as many ranks as separated them, Lieutenant Thapisang and Private Uariua were not permitted to engage in a romantic relationship. When this relationship was discovered, both were hauled before a disciplinary hearing at the Sir Seretse Khama Barracks (SSKB) where they were stationed. The charge was that they had engaged in an “inappropriate relationship” in terms of the army’s Policy on Fraternisation and Sexual Harassment. She was found guilty and fined and would probably have been imprisoned if she was not pregnant with Uariua’s child. The boyfriend was jailed for 45 days and according to a story that appeared in The Voice, some possibly jealous soldiers had taken to stopping by to heap scorn on him for “eating the bosses’ food.” In a different context, Thapisang herself confirmed that allegation, telling Sunday Standard that “Some senior officers told me that they will make sure that I am dismissed because ke jesa dijo tsa barena.”

The affidavit she deposed to doesn’t contain such salacious details but is rather anchored on the legality of the fraternisation policy which she contends 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 argues in her papers.

Typical of practically all common-law applications, the case got bogged down in technicalities for long periods of time. The most recent related to an application by the couple to add the army’s Disciplinary Committee on its target list. In her original application, Thapisang cited the BDF commander but after gaining access to the record of proceedings of the disciplinary committee that tried her, she added the deputy commander and two lieutenant colonels. The state successfully argued that the decision taken by the Commander BDF and the committee are different and relate to separate issues.

“The cause of action is new and the parties are different. This is substantively a new application altogether,” the state said.

Likewise, Justice Dr. Zein Kebonang queried the legal wisdom of adding to the respondents’ list when established judicial practice is to cite the most senior officer in an organisation. On such basis, the citing of the BDF Commander alone sufficed. The couple will amend its papers such that they conform to established practice.

The case gains traction just as the man who fired the couple, BDF commander Lieutenant General Gaolathe Galebotswe, is on his way out having reached retirement age.

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