Wednesday, January 26, 2022

Ruling opens door for Kgosi Kgafela’s return

Gaborone Chief Magistrate Mokibe- Oagile on Thursday, set free 10 Bakgatla charged with escape from lawful custody by acquitting and discharging them at the close of the state’s case.

The current charge of escape from lawful custody stems from a long ongoing legal battle that eventually gave rise to Kgosi Kgafela’s departure from Botswana during the course of a trial in which he and the other Bakgatla were facing various charges of assault.

In 2010, faced with an increasing crime rate and disregard for customary law and tradition, the Bakgatla in Mochudi engaged in an effort to rid the Village of criminal elements and reassert traditional community values under the auspices of Customary Law. The initial public response to the endeavour was overwhelming support. consequently the Bakgatla mobilised their Mophato and armed with their meretlwa proceeded to assert their authority through the streets of Mochudi and the surrounding hinterland.  The subsequent events led to a turning point in the history of the Bakgatla.  

Various bystanders and members of the Mochudi community were confronted by the Mophato and allegations of assault were made against Kgosi Kgafela II, his brother Mmusi Kgafela and members of the Mophato. 14 members of the Mophato and the Royal family were initially charged with assault and brought before the then Regional Magistrate Barnabas Nyamadzabo.

It was during these proceedings that the Bakgatla rallied behind their leadership and in a show of solidarity attended the Court proceedings in their droves dressed in traditional regalia. However as a result of the state alleging that the accused continued to conduct and participate in the actions that gave rise to the then charges they applied that the accused bail be revoked. On the 27th October 2010 in a two pronged ruling the court agreed with the state and revoked the accused bail and remanded them at first in custody and a short time later, the court remanded (this time not stating in “custody”) them until later that day.

The large contingent of the Botswana Police Service present took no action as the accused stepped out of Court and left amidst the Bakgatla faithful. They did not return to court that day but handed themselves to the authorities the following day. It was this event that caused the state to charge all the accused with the exception of Kgosi Sekai, who had remained at Court to eat lunch with escape from lawful custody.

This week the court determined that the acccused had never been placed in custody and consequently could not have been charged with escaping, they had stepped into freedom. They were acquitted and discharged of the offense of escape. Mmusi Kgafela was represented by Adv. Sidney Pilane (instructed by Ramalepa Attorneys) Attorney Banyatsi Mmekwa (Ezekiel Mmekwa Attorneys) Represented Bogopa Linchwe and Carlos Salbany (Bayford and Associates) represented the remaining 8 accused. State Counsel Ms J Botha represented the DPP.

The acquittal of the accused is expected to open the doors for the return of Kgosi Kgafela and commence healing the relationship between the Bakgatla and the State. 

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