Saturday, December 3, 2022

Kgafela II is kgosi, not Kgosi Kgolo ÔÇô High Court

Falling short of tilting the scale in favour of the state in the Kgafela criminal case, the Lobatse High Court has stated that Bakgatla paramount Chief Kgafela Kgafela has no power to flog or order floggings within the Kgatleng District.

“Dikgosi cannot act outside the constitution and laws prescribed by parliament when all other functionaries of the state act within the prescribed statutory limitations, to do otherwise would clearly be unconstitutional,” said High Court Judge Isaac Lesetedi as he dismissed a constitutional application brought by Kgafela, his younger brother Mmusi Kgafela, Bana Sekai and 11 others, all of whom are accused of assaulting a number of individuals within Kgatleng District.

The court also ordered that the criminal trial against the accused, which is before the Gaborone Regional Magistrate Court, resume.

The accused had approached the High Court to declare that ‘go Kgwathisa’ is a lawful sanction, which can be employed by Kgafela under customary law.

The court said that flogging, as a form of punishment, can only be applied by court acting in accordance within the parameters of the law.

Lesetedi said that Botswana is governed by a written constitution, which among others, protects fundamental human rights, equality before the law and security of the person.

“The coercive power of the state is constituted of institutions, which have to operate within defined statutory regulatory system intended to secure and protect the person from any infringement of the enshrined fundamental rights,” he said.

The three men composed of Lesetedi, Chief Justice Maruping Dibotelo and Modiri Letsididi, criticized the Minister of Local Government, Lebonaamang Mokalake, for recognising Kgafela as Kgosi Kgolo, a position which the court said does not exist.

“No government functionary therefore has the legal power to confer by way of recognition, a title which is not recognized by the constitution or statute law. It was therefore a mistake on the part of the Minister of Local Government in the designation letter dated 8th April 2008 to refer to the 1st appellant as Kgosi Kgolo instead of Kgosi,” Lesetedi said.

He said that parliament, through various laws passed over the years, had taken away the powers that chiefs used to enjoy and had, in-fact, passed the Bogosi Act to regulate the functions and powers of chieftainship.

“Over time, both colonial oversight and political awareness with the coming of nationhood at the level above the tribal state, has eaten away some of those powers for the greater good of the democratic nation state…the executive power, more particularly for keeping law and order, falls on the executive, which implements laws passed by parliament,” he said.

Lesetedi told the court room, packed with Bakgatla tribesmen and women, that when Kgafela applied for recognition in line with the Bogosi Act, he had contemplated exercising the powers and functions of a Chief as laid out in the Bogosi Act.

“He has therefore no power to act outside the parameters of the enabling statute, which has been enacted by parliament,” he stated.

“To argue that there can be a position of Kgosi Kgolo outside the parameters of the legislative enactment, to exercise unwritten law, to impose undefined and unregulated coercive power, corporal punishment included, or exercise judicial authority without the necessary established checks and balances and without a right of recourse set out under any written law is inimical to the values promoted by the constitution and thus untenable,” Lesetedi said.

Judge Lesetedi also said that Mephato, who in the old days served as the Kgosi’s law enforcement organs, no longer have any recognition in present day government set up.

“The institutions of mephato now merely became a tribal feature with no legal power of law enforcement or policing. Such powers fall under the police. Like other powers, elsewhere these powers are regulated by legislative enactments. Any member of Mophato of any tribe or tribal community enjoys no better power than an ordinary member of the public,” said Lesetedi.

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