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.