Thursday, February 9, 2023

Judiciary about to be embroiled in ugly tribal politics

At this point, it is all but certain that the battle for the heart and soul of the Botswana Patriotic Front (BPF) will end at the High Court. That wouldn’t be the first time that the judiciary has to settle an internal political dispute. What would be a first is that the geographic origins of both the judges and the litigants as well as the High Court’s case assignment system will come under controversial focus.

A year after his suspension was lifted, Reverend Biggie Butale has resurfaced and is attempting to reclaim his position as BPF president. Butale is making his return on the back of a legal opinion that was written by Ramalepa Attorneys. While the National Executive Committee (NEC) had lifted Butale’s suspension and only reinstated him as an ordinary member, the legal opinion says that the reinstatement means that he is back to being president.

Butale is keen to give the legal opinion the force and effect of a court order. Such order would compel the party to comply but a legal opinion can’t. Upon conviction that he is the legitimate president, he told a press conference last Wednesday that he has cancelled the scheduled elective congress.

On the other hand, the NEC is going ahead with plans for the congress in Tati Siding, which is 15 kilometres from Francistown. Sunday Standard learns that paid accommodation for some delegates has already been booked and paid for at Francistown hospitality establishments, that unpaid accommodation had been arranged for some delegates at local schools, that a venue for the congress (Bugalo Primary School) has been secured and that plans are being made for a big-name South Africa artist with a huge following in Botswana to play at the congress.

If Butale can indeed decree, he has decreed only he can call NEC meetings as the constitution says. On the other hand, Sunday Standard the NEC believes that its actions with regard to Butale were proper and that what he said at his press conference was just hot air. The party’s spokesperson, Lawrence Ookeditse actually released a statement to that effect on Thursday. While the legal opinion from Ramalepa Attorneys says that the party’s Disciplinary Committee couldn’t have interdicted Butale from holding the position of president, one NEC refers Sunday Standard to Clause 40.5.6 in the party’s constitution to justify that action. The provision in question says that the Disciplinary Committee has the power to “impose any other penalty it may deem fit.”

Naturally, Butale interprets Clause 40.5.6 differently and the showdown is headed for the High Court. However, when it gets there, there will be extrajudicial issues that will also take centre stage. Last month, Justice Gaolapelwe Ketlogetswe at the Lobatse High Court alleged that Chief Justice Terrence Rannowane has unofficially taken a position that judges from the north shouldn’t hear cases that involve BPF founder and patron, Ian Khama because they are his subjects. Away from politics, Khama is the supreme traditional leader of Bangwato, whose tribal territory is the largest in the country.

Khama and Butale have been keen to play up this north-south angle. Khama did so when he Skyped into a BPF rally in Lerala at which former Lerala-Maunatlala MP, Prince Maele, was welcomed into the party. Butale did so at the Wednesday press conference, quoting a tribal slur that Rannowane is alleged to have used – “Nkhwa”, which means Bushman.

In order to assure equitable distribution of caseload and avoid “judge-shopping”, the High Court uses an electronic case-assignment system. However, the nature of political expediency is such that even if a computer independently and randomly assigns the BPF case to a judge from the south, the contents and sentiments of Ketlogetswe’s letter will be invoked. They will be ramped up if the presiding judge returns an unfavourable verdict. At the centre of it all will be ugly tribal politics.

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