The BDF Act is a legal instrument created specifically to enable the running of this military establishment that has come to be known as the Botswana Defence Force. This instrument provides legal protection to the institution and the country; as well as the individual that seeks to exist in it for the whole period of time they remain in the employ of the defence force.
The BDF Act is a legal instrument set by parliament passed into law in April 1977. This became more of a copy and paste action from the British military who have been our colonizers. The laws have in the past forty-three years been given a single serious review that was led by Major General Gotsileene “Goose” Morake. Otherwise before then, only a single piece of this legislation has been brought before parliament for amendment.
While Lieutenant General Ian Khama was head of the military, he singularly requested parliament to revoke the right to be heard before a Court Martial by non-commissioned officers. That is the rank from private to staff sergeant. In most of the disciplinary proceedings, soldiers were opting more to be tried before a Court Martial rather than being tried summarily.
Parliament blindly accepted Khama’s request and was given what he wanted on a silver platter. In fact this was a blank cheque to him and this could have jeopardised the security of our country. Here was a problem; the ordinary soldiers continuously subverted the disciplinary proceedings in favour of the Court Martial because of its level of fairness.
The Court Martial is an equivalent of the High Court in Botswana and therefore the records that are generated from its proceedings end up in the hands of the reviewing panels at the High Court to determine if trial was conducted fairly to fulfil all the demands of natural justice.
The system where non-commissioned officers could no longer opt for a Court Martial was so abused by commissioned officers and especially commanding officers who equally acted as prosecutors until now. The situation got so bad to a point where commanding officers were choosing the people they wanted to prosecute.
What was interesting when this law was being changed was that BDF was beginning to lose a lot of its founding officers who had migrated from Botswana Police Force. It was here that they were trained as prosecutors and they continued to assume this role when they were with BDF. However, the system remained open to abuse. The change of law to deny juniors the right to opt for Court Martial should have happened simultaneously with the arrival of Judge Advocate General. Right now the JAG is coming to fill that void created more than two decades ago.
However, there are still those matters which remain as the preserve of the Court Martial. Let me highlight to the reader the major differences between the two sets of law that are found in Botswana’s military legal codes. Summary Disciplinary Proceedings serve as a quick way of dealing with soldiers who commit offences that compromise the discipline of the force.
Charges that are dealt with summarily include, failure to perform military duties, desertion, absence without leave and even failure to dress appropriately. There is a myriad of these offences and some of them have never been used because the commanding officers themselves are found lacking in that particular area. One of such is drunkenness. It is an offence for any soldier to drink and get drunk even when they are off duty.
Some of these offences mentioned above can attract sentences that are under six months in prison. By the way, BDF also runs its own penitentiary system and the interesting thing is that prisoners never go missing in those facilities found in Gaborone and Francistown. These facilities were created to support the military legal system which in many ways seems odd to the civilian world. Imagine a BDF prisoner who is serving a sentence for offences against morale being kept at Ncojane Prison with actors in stock theft; that is untenable.
On the other hand, the Court Martial deals with matters that fall within the category of criminal offences. These include cowardice, mutiny, treachery and aiding and communicating with the enemy. The list that falls within the criteria prescribed for the Court Martial are serious offences in nature and some of them attract death sentence.
In the past, a soldier has been prosecuted before a Court Martial for stealing a box of ten chickens from the kitchen pantry. Even though this was a lesser crime, it fell within criminal matters and the soldier was tried by a Court Martial. In another case, a soldier was tried under the same system for cowardice and was convicted. The famous trial of Corporal Kgantlepe in the 1980s attracted media attention and a lot of public interest. Kgantlepe who was acting as a section commander of ten men in a regular patrol at night, failed to engage the enemy at plain sight and was charged for cowardice. A combi ferrying a team of South African commandos was spotted by Kgantlepe’s patrol in one of the suburbs of Broadhurst. Kgantlepe failed to issue orders to fire. He was tried and sentenced to fifteen years which were later remitted by the president.
In another case which ran parallel with this one, Corporal Manjesa was equally sentenced to fifteen years for discharging fire on a wrong target. Seeing a combi in the dark in Mogoditshane, he ordered his section to open fire on a civilian target. In the combi were two young Batswana lovers. He was later pardoned by the president and unlike Kgantlepe, he was reinstated to his position and job. Interestingly both were members of the Combat of Engineers Regiment.
The introduction of the office of JAG was long overdue when taking into account the manner in which justice is served at BDF. The system has all along been disadvantaging juniors and they were deliberately exploited by those who had the power to preside on their matters.
