The state this week said that Bakgatla paramount chief, Kgafela Kgafela II, is an ordinary traditional leader without constitutional powers and duties over his subjects.
Susan Mongori, representing the state, rubbed Bakgatla the wrong way before the High Court, presided by Judges Isaac Lesetedi, Modiri Letsididi and Maruping Dibotelo, when she argued that at the time Kgafela designated his relative as the regent to hold the fort, the youthful traditional leader stripped himself of powers and rights over his subjects.
Unconvinced by the decision of the lower court, which dismissed his claims of constitutional rights, Kgafela approached the High Court.
“We do not dispute that he was publicly acknowledged and designated as ‘Kgosi Kgolo of Bakgatla ba Kgafela’ in accordance with the Bogosi Act. However, he opted not to take up functions of office of a Kgosi under the Bogosi Act and recommended that another member of his tribe be appointed as Motshwaralela Bogosi and thereby clothing him with the power to impose corporal punishment or go kgwathisa after proper judicial process,” Mongori told the Court, to the amazement of Bakgatla who had crowded the Woodhall court in solidarity with their chief.
Mongori added that “when he recommended Mothibe Linchwe as Motshwaralela Bogosi, he should have known that he was relinquishing his traditional powers and rights over his people as enshrined in the Botswana laws”.
Quoting from the Act, Mongori dismissed as misplaced and unfounded Kgafela’s constitutional claims of rights over his subjects, insisting the law prescribes that the person who exercises the powers of Kgosi is not liable to compete with any other person, thus rendering Kgafela’s attempt to exercise these powers void and unlawful.
“It is our submission that the fact that the Act clearly excludes any other people from exercising the functions of Kgosi while Motshwaralela Bogosi is in office to avoid confusion, chaos and disorder in any given tribe or tribal community,” she argued, maintaining that “in terms of the Interpretations Act, functions of a Kgosi are clearly defined and can only be exercised by such a designated person and, as such, “the first appellant does not fall in this bracket”.
Appearing for the appellants charged with flogging people under the guise of protecting and restoring traditional values, Martin Brassey argued that corporal punishment survived colonial times and, to date, still enjoys the light of the day.
Underpinning his argument over the traditional customary law, which he said is recognized by the constitution, the South African advocate indicated he was puzzled by the fuss and commotion doing the rounds.
“We submit that go kgwathisa, or corporal punishment, is a part of customary law, protected by the constitution of Botswana and its carrying out in accordance with customary law and in compliance with the constitution cannot constitute an offence under the laws of Botswana,” Brassey contended.
“We submit in accordance with the constitution of Botswana all traditional customary laws of several tribes, including go kgwathisa, are still in force unless and until they are specifically legislated against by parliament,” he added, arguing that “prior to the establishment of the Bechuanaland Protectorate, there existed indigenous legal systems governing those living in tribal areas”.
The High Court is expected to deliver judgment on 11 March 2011.
