Lawyers who represented the Law Society of Botswana (LSB) and attorney Omphemetse Motumise in an important constitutional case attributed their success to archival records that they had to dig up 12 832 kilometres away in London.
The records related to minutes of the Independence Conference that was held in London in 1966 between representatives of the British Colonial Office and a team of Batswana led by future founding president, Seretse Khama and his future vice president, Ketumile Masire. At least in the interpretation of two Court of Appeal judges, the minutes revealed what the founding fathers intended with regard to who should appoint judges. Justice being a numbers game, the two judges swayed the judgment in the favour of LSB and Motumise.
The literal and legal journeys are a stark illustration of the difficulty that Botswana still has in using its past to make sense of the present. When he tangled with the government four years ago over the unlawful flogging of his subjects, the now de-recognised and self-exiled Bakgatla traditional leader, Kgosi Kgafela II, said that dikgosi were not consulted when the constitution of the future Republic of Botswana was being put together. However, 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 then Prime Minister 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.
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.
Throughout his never-concluded case, Kgafela said that there was no record to prove that dikgosi had been consulted. There is actually but the record is in London.
Next to archival records which Botswana has not been able to reclaim are historical artefacts. Across the border in Mafikeng is a cannon that was used by the iconic Bakwena leader, Kgosi Sechele I, in a military campaign against Boer invaders. A car belonging to one of his grandchildren, Kgosi Kgari Sechele, is said to be in Swaziland.