It has to be for a very good reason that Kgosi Kgafela II would want Justice Key Dingake of the Lobatse High Court to testify on his behalf in a case in which he is challenging the legitimacy of the constitution. And indeed it is.
All along, the Bakgatla traditional leader has been saying that Botswana’s constitution lacks legitimacy because Batswana did not make any input in its putting together. In his book, “Constitutionalism and the Rule of Law in Botswana”, Dingake writes: “Ultimately, the Botswana constitution was more of a social contract amongst the negotiating parties to cement independence. It clearly lacked the democratic participation of the people, as is the case with most modern constitutions.”
In another part of the book, he points out that the constitution is “an embodiment of the aspirations of the people. This is particularly so with respect to the section of a constitution that entrenches fundamental human rights and freedoms.”
Giving a brief history of how the constitution came about, Dingake says that following the constitutional talks in Lobatse in 1963 that confirmed the essential elements of the constitution, the latter was confirmed making way for elections that were won by the Botswana Democratic Party. Thereafter, a conference was held in London in February 1966, seven months before independence. Batswana representatives at the conference were President Seretse Khama, Prime Minister Ketumile Masire representing the government; Kgosi Bathoen II representing traditional leaders; and, Philip Matante, representing opposition parties.
“At the London conference, Mr. P.G. Matante sought to convince the conference participants that it would be prudent to consult the people of Botswana on the terms of the constitution. He proposed that a commission consisting of representatives of political parties, chiefs, the Botswana government and the colonial administration be set up to consult with the people. His proposals were not accepted, and following their defeat, Mr. P.G. Matante walked out of the conference and returned home,” Dingake says in his book.
Two pages later in the next chapter, the book returns to the topic and elaborates on the point. It says that Botswana’s constitution, just like that of other English-speaking African states, is a creation of Britain and not indigenous people.
“The constitution was not a product of any sustained discussion among the people. There was no referendum to solicit people’s views about its provisions. In many ways the constitution has many features that were found in the constitutional conventions of the United Kingdom. Some of those features were that the government was to be led by the leader of the majority party and the leader of the minority party with the largest representation would be the leader of the opposition.”
Dingake goes farther to contest the view that Botswana inherited the UK’s Westminster model of government. It would be more accurate, he argues, to say that Botswana’s operative system of government is a combination of Westminster and presidential systems.
“In terms of the constitution, the president is both the head of government and state, something quite alien to the Westminster system of government,” the book says.
What the judge says is certainly something that Kgafela would like to incorporate in his court papers. Kgafela is facing criminal charges at a Gaborone magistrate court but is contesting the legitimacy of the law that was used to charge him. A point that he has consistently harped on is that Batswana had no input in the making of the constitution and are therefore not legally bound by it. Way before there was any problem between Kgafela and the government, Dingake, a constitutional scholar and former law lecturer at the University of Botswana (UB), was critiquing Botswana’s constitution, making the same points that he does in his latest book. This is ammunition that Kgafela doesn’t want to go to waste as he takes on the government. Lately, the Bakgatla kgosi has sought the support of the nation through leaflets that are being distributed across the country.
While Kgafela will most definitely be happy with what Dingake says about the manner in which Botswana’s constitution was cobbled together, he will not be too thrilled when he gets to the part about the kgotla being used as a forum for consultation. The book describes how the kgotla operated before colonialism and what it says shows that very little has changed in how this institution is run.
The kgotla is supposed to accommodate everyone’s viewpoint but when he addresses this topic in his book, Dingake begins by pointing out that even in the olden days “not everyone could participate in the kgotla deliberations.” Those he cites as proof of that are uncircumcised males, females and subservient groups like Basarwa. (What a Mosarwa woman in Letlhakeng said to the writer as she left a polling station would suggest that her ethnic group may be the only ones that still doesn’t get to get to speak at the kgotla. The woman said that voting was the only way to make her voice heard because only Bakwena and Bakgalagadi are called upon to speak at kgotla meetings in the village)
The book says that the agenda of kgotla meetings as well as strategies to ensure that agenda is adopted were discussed at closed-door meetings by the kgosi and close aides.
“In some cases, the kgotla served to legitimise the decisions made by the ruling class,” Dingake writes.
Like Dingake, an American student researching the kgotla for his PhD dissertation in the late 1960s was less than impressed by the workings of this institution. In “Nation Building and the Administrative State”, G. Gunderson, observed that when a policy matter was presented to the kgotla tribal authorities, the chief and headmen would have already come to an agreement upon the matter, and free and open debate may amount to a pure ritual. Obviously, Dingake quotes this study to show that he agrees with its conclusions.
Lately the kgotla as an appropriate forum for consultation is getting thumbs down even from least expected quarters. President Ian Khama has stated that he uses the kgotla to consult Batswana on a variety of issues. On the other hand, former president Ketumile Masire said recently that the kgotla is not a reliable consultation forum because in general, dikgosi would be inclined to hear only views that support their position. Interestingly, Masire never made this point when he was president. That is because for national leaders, bogosi (chieftainship) is the third rail of tribal politics and those who dare touch it with any kind of pole would be electrocuted out of political relevance, existence even. President Festus Mogae’s government was forced to preserve the special status of dikgosi from the eight tribes because had he downgraded them, all hell would have broken loose.
Tied to the deficiency of kgotla as a consultation forum is the perception by some that in its entirety, bogosi is so irrelevant that some would have no qualms about borrowing an American wordsmith’s description of ‘government’ and apply it on this Setswana institution: ‘a disease masquerading as its own cure.’ These naysayers point to ways in which bogosi and republicanism are night-and-day different and ill-matched for cohabitation. They express dissatisfaction about the fact one becomes kgosi through accident-of-birth privilege in a nation that, through its adoption of a host of productivity intervention schemes, wants to operate as a meritocracy.
Appearing before South Africa’s Judicial Services Commission before his appointment as Chief Justice, Mogoeng Mogoeng praised the Botswana’s traditional court system and suggested that his country should adopt it.
On the other hand, Dr. Zein Kebonang points out the deficiencies inherent in the customary court as the judicial arm of the kgotla.
“You have non-lawyers giving meaning to law and [unlike in the Roman-Dutch law system where one is innocent until proven guilty] there is always an assumption of guilt when one appears before the kgotla. That can only lead to injustice,” argues Kebonang, a legal scholar who had a stint as lecturer at UB.
Dingake’s analysis on the constitution would also be of interest to people inside and outside parliament who have called for constitutional review. To be clear, Dingake has himself called for a review of the constitution which, as he is keen to stress, is “not cast in stone.” However, he also makes the point that a constitution must be “enduring” and “should not be easily amended” in order to ensure political stability.
“It is in the nature of a constitution that the process of amending it must be difficult,” he writes.