While he ultimately abandoned his case, Bakgatla kgosi, Kgafela II planted a seed of doubt in the minds of many (if not most) that Batswana in 1966 were not consulted when the constitution of the future Republic of Botswana was being put together.
In a long-running stand-off with authority figures, Kgafela insisted that no consultation ever took place and the dispute degenerated to a level where he made cannibalistic threats against former president Festus Mogae: one newspaper quoted him as saying of the former president: “I am going to eat you alive in court.” Fortunately, the Bakgatla kgosi-in-self-imposed-exile never culinarily acted on his threats because Mogae is still being chauffeured around, still chairing Choppies board meetings and still able to jet off to East Africa capitals and make a warts-and-all assessment of his successor’s performance to an international TV audience. Hopefully, when Kgafela is back home after his South African sojourn, he will find enough strength to confine his carnivorous appetite to halaal-certified meat products that he can purchase legally from the fresh-produce section of Mochudi Spar Supermarket.
There is no need to eat Mogae alive because archival material shows that one of those consulted was Kgafela’s own father, Kgosi Linchwe II. At the time, the latter was a member of the colonial-era House of Chiefs. The consultation was done on January 11, 1966 by Prime Minister of the Bechuanaland Protectorate and future first president Botswana, Seretse Khama. This consultation was in accordance with the Constitution of Bechuanaland and subsequent to it, the house produced a motion which reads thus: “That in the opinion of this House the proposals set out in Legislative Assembly Paper. 21 of 1965/66 (proposals for an Independence Constitution) are a satisfactory basis on which the attainment of independence by Bechuanaland should be negotiated between the Government of Bechuanaland and Her Majesty’s Government in the United Kingdom.”
The only amendment to the motion was that the House of chiefs should be modified before independence so that in lieu of the present four elected members, there should be five members elected by the eight ex-officio members from among qualified people. The ex-officio members were the following dikgosi: Bathoen II of Bangwaketse, Kebalepile of Barolong, Letsholathebe II of Batawana, Linchwe II of Bakgatla, Mokgosi III of Balete, Neale Sechele of Bakwena and Rasebolai Kgamane of Bangwato. The elected members were the following “sub-chiefs” as they were called: Katlholo, Moapare, Sinvula and Theko.
In the previous year (December 13, 1965 to be precise), Khama had told the Legislative Assembly meeting in Lobatse that before it discussed the proposals for an Independent Constitution at a special meeting, “he proposed to consult the House of Chiefs.” Eight months earlier, Linchwe had been elected Deputy Chairman of the house.
Members of the house were representing their respective tribes and the representation system then as now functioned in such manner that members consult (or are supposed to consult) constituencies they represent. Indeed Khama would later ask dikgosi to consult their subjects about the new constitution.
The most important dimension of the matter though would be the quality of such consultation. Kgosikwena says that this was a facile exercise given that the chiefs lacked both the academic pedigree and political sophistication to fully understand what the implications of endorsing a western-oriented constitution were. Indeed it seems inconceivable that Dikgosi would agree to a constitutional order that preserved a status quo that had shorn them of the power they had wielded over centuries.
Bakgatla paramount chief, Kgosi Kgolo Kgafela II, has made an application to the High Court for the constitution of Botswana to be set aside because it is a fraudulent document that was enacted without any input from Batswana.
In papers filed before the Lobatse High Court, Kgafela challenges the legal authority of the government of Botswana to try and prosecute him. He argues that the constitution of Botswana, which gives birth to government and all its institutions, lacks the legal legitimacy upon which all constitutions must rest.
“The constitution of Botswana purports to be something that it is not. The whole system is a fraud upon me and the people of Botswana. I am being prosecuted on the basis of a fraudulent law,” said Kgafela.
He added that the constitution must be tested against two fundamental principles, the first one being the consensus of the governed, and the law of God.
“The constitution document and the administrative systems that support its life are a fraud and they must be set aside. Again, the constitution does not reflect consensus or the will of the people. Instead it suppresses the will of the people,” charges Kgafela. He says the constitution and its daily application unambiguously offends against the law of God as it imposes foreign laws upon Batswana when God allows people to live in accordance with the law of their forefathers. “The law of God mandates us to respect our kings, yet the constitution and its daily application treats kings like trash,” he avers. Kgafela argues that there is no evidence that Bakgatla ever agreed to the constitution as advocated for by the late Sir Seretse Khama. On the contrary, he said, there is evidence that Bakgatla and other tribal leaders objected to the constitution because the people had not been consulted.
He tendered a letter, dated 30th December 1965, and authored by the tribal leaders of Bakgatla, Bangwaketse, Batlokwa and Balete, in which they complained about the lack of consultation. Such complaints went unheeded by Seretse Khama and Ketumile Masire, says the youthful tribal leader
”Khama and Masire saw themselves as qualified to decide the future of everyone else in the country. There is also evidence that Phillip Matante also raised concerns during the constitutional talks in London.
He later withdrew from the talks in protest,” says Kgafela.
He has accused Masire of being “economical with the truth” about Matante’s withdrawal from the talks in a Btv interview in May, adding that records from the independence talks prove that Matante withdrew because his conscience would not let him partake in a fraud that would catch up with him later in life.
Kgafela says it is upon the court to prove him wrong and give evidence of any consultation in constitutional talks, failing which he will ask the court to throw out the charges laid against him as they are based on a fraudulent constitution.
“If the DPP is unable to prove me wrong, then the court must set the constitution aside and free me and my co-accused from the bondage of trial. This is the relief I seek,” said Kgafela.
In any case, he said, any consultation that Masire and Seretse would have conducted was negligible because the constitution was, as is now, written in English and would not have been understood by the majority of Batswana.
“This constitution is still not understood by the uneducated majority of Batswana. Even Masire still does not understand it,” he said.
He added that there is nowhere that Bakgatla ever signed to indicate that they endorsed the constitution, and challenged government to show him the minutes of a single kgotla meeting at which Batswana ever discussed the constitution.
Bakgatla Paramount Chief Kgafela Kgafela filed the initial petition in October as an exception to an ongoing criminal matter against him and 13 others, currently before the Village Magistrate’s Court. In the exception Kgafela is challenging the legal authority of the government to prosecute him. Kgafela has argued that the constitution, from which government’s very existence, together with that of the court flows, lacks legitimacy. He says this is because it was written without input from Batswana and also violates God’s standard, which calls for people to follow the law of their forefathers, chief among whose tenets is respect for dikgosi.
As evidence Kgafela will present a 1965 letter written by dikgosi of Balete, Bakgatla, Bangwaketse and Batlokwa wherein they complained about lack of consultation in the drafting of the constitution. Their complaints though were unheeded by then Prime Minister Seretse Khama and his right-hand man Ketumile Masire, both of whom later became presidents of the Republic of Botswana, he said.
Kgafela said that former President Quett Masire claimed he conducted close to 150 consultative meetings before the constitution was adopted adding that no such meetings were held.
“Such a process never happened. The department of archives and records failed to show consultation minutes for the process that Masire said happened,” he said. “We cannot be ruled by a law which is forced into us. It is against the international laws such as common law of consensus, which dictates that people should be ruled by an agreed constitution,” he said.
Speaking during a public lecture on constitutional review at University of Botswana, Kgafela said that the constitution needs to have popular appeal if it is to enjoy legitimacy.
