On 27th May last year an historic meeting took place at our kgotla in Mochudi. This meeting was a kgotla meeting called by Kgosi Kgolo Kgafela II in order to afford the trade unions ( BOFEPUSO ) a platform to speak to the public about their grievances with Government. Those who attended the meeting may recall the advice given to the trade unions by Kgosi Kgolo. That advice was that the trade unions must cast their eyes beyond the 16 percent they were demanding and rather should demand freedom and justice for the future. Kgabo advised them exactly what to do and assured them that if they failed, he would launch a constitutional challenge against the government in September of the same year.
In June 2011 the government gave Kgosi Kgolo new criminal charges of escape from lawful custody. We now know that on 6th June 2011 Kgabo registered the defence of an exception against those charges. The exception challenges the power of the court and power of the prosecution unit to prosecute anybody, on the basis that the law (Constitution of Botswana) that empowers these institutions to try and prosecute anybody is a fraud. Kgabo asks the Court to set aside the Botswana constitution on that basis. If he succeeds this spells freedom for all of us; freedom from the yokes of colonialism disguised as democracy and freedom from the tyranny of a government that promotes colonial culture. This is what I have called the Botswana Revolution. I wish many of my countrymen could see the revolution for what it is to wake them up into paying better attention to what is going on around us.
It has been a long journey to arrive at the present point where the highest court in the country is being called upon to answer one question: is the Botswana constitution a legal document of and by Batswana and if not what is its legal status in the light of the accusations of fraud and other instances of illegality that form the central argument in the exception before the Court. This really is the heart of the matter. It is as simple as that. What makes the matter even simpler to understand is that Kgabo has written a detailed affidavit, now before the Court and widely circulated amongst the public including the media, where the issues of law and fact have been so thoroughly laid out as to leave no confusion even in the mind of the least educated. This approach has afforded us all an opportunity of understanding the case ahead of time and to narrow down room for distortion of the story line which otherwise would have been the case if the story had been told in bits and pieces through media reports of Court attendances.
This story line, as I understand it from hearing it in kgotla meetings , and recently on radio (Gabz Fm last year and Yarona Fm on 23rd January this year) is this simple. (a) Man must live by law if he is to survive and enjoy peace and prosperity as community. (b) This law, necessarily must be a law agreed upon by the people of the land who are to become subject to the law. (c) The God of our creation advises in various holy books, specifically the Holy Bible, that in choosing such law by agreement, our agreement must consciously take into account the law of our forefathers. (d) The same bible actually cautions Mankind against following the laws of other Gods worshipped by foreign people whose origin we do not know. (e) International law developed by the United Nations and the African Union mandates member states to rule their people in accordance with the law agreed by free will. International law confirms these principles. The Botswana Government has signed to be bound by these international principles. (f) A High Court Judge Mr Key Dingake has recently published a book on constitutional law where he too confirms these principles that a constitution must be a law of the people. He goes further in his book to state as a fact that Batswana were not consulted when the Botswana constitution was made law in 1966. (g) Another High Court judge Mr Phumaphi has been quoted in the past as having opined that the Botswana constitution was not a document of the people and deserved no respect at all. (h) The icing on the cake is topped by a letter written on 30th December 1965 by four Kings of Four tribal communities in the then Bechuanaland, where these Kings made it clear to the colonial Government that the people had not been consulted and deserved to be consulted. (I) Mr Matante of the Botswana People’s Party reemphasised this plight in the clearest language of the time in London in 1966. (j) There is a further letter of 1965 by the Botswana Independence party complaining about the same thing. (K) When Dikgosi and all the opposition parties of the time complained about lack of consultation with the people, the question that arises is this that who exactly did the ruling BDP consult? (L) The Botswana constitution and subsidiary legislation is not law of the people nor law of our forefathers because whilst our forefathers were certainly not English speaking people, the Constitution law itself is written in English , without any translation to indigenous languages , embodying and promoting foreign cultures against the will of the majority of Batswana. (M) All this information is part of the affidavit before the Court which the government has not refuted since September 2011. I pause and ask you reader, and fellow countrymen, what is so difficult to understand about these 13 simple cardinal points of the matter?
The Government of Botswana has been ordered by the Court in the exception case of Kgosikgolo Kgafela to produce certain documents that will assist the Court in determining whether indeed consultations did take place in respect of the constitution , and if so their nature , scope and extend. These Court orders were made in June and August 2011. Some of the documents requested are meant to address the usual argument by governments faced with the present challenge where they rush to claim, without facts, that the people of the land have accepted the status quo. The magistrates Court has ordered the Government to produce documents concerning population census and voters roll, amongst others of similar relevance, to see public participation in the electoral process and to see exactly what aspect of the population votes for the ruling party for it to claim that it represents the people of Botswana. The Government has failed to comply with these Court Orders, including the simplest of all being production of the BTV footage of last year May where former president Mr Masire told the public that he personally conducted constitutional consultations in Mochudi. The Botswana archives has reported that they do not have any records of consultations especially consultations by Rre Masire. This report is now part of the Court record.
On the basis of the foregoing, I ask you fellow countrymen, is there a reason why the High Court should not make an order on 1st March 2012 setting aside the Botswana constitution to allow us Batswana to develop our own? I have noticed this sad reality that whenever major constitutional change is advocated through the Courts, there is much anxiety, consternation and fear about the future amongst many people, some of whom have become so close minded as to believe that it is impossible for the Court to bring about such a change. This fear emerged during the Yarona Fm interview and is the common topic in social gatherings. Surprisingly, these same people do not express or display the same level of anxiety when the constitutional change called for is advocated by the politicians in cabinet or parliament, who have evidently failed this country. Does it make a difference if the Constitutional change is heralded by the Court or the politicians, if we are talking about the same change we desire?
Speaking purely from the point of view of fact and law, it makes no difference to me. But speaking from the perspective of experiences drawn from human conduct in our political system, I can confidently say that the change will either never come or if it does come it will not be a realistic peoples change where the matter is left entirely to the politicians in parliament. My reasons are these that firstly, if parliament and cabinet truly desired a constitutional change, they would have long exercised their powers to bring about such a change. Secondly, the head of state president Ian Kgama and his deputy Mr Merafe have publicly made it clear that they don’t want the constitutional change. Rre Merafe is reported to have said “why fix it if it is not broken!” Thirdly, if the change is left to the politicians, they will do as they did in 1966, and as they have done all the time elsewhere in the world, by confining constitutional talks to the educated elite and party members only, whilst ignoring or sidelining the wishes of the people. The recent experiences of Zambia should teach us what will happen if we fall for this error. The truth is that most politicians do not want issues that challenge their belief system to go to the people for the people to decide on their future. They fear what the people may have to say about them politicians, their belief systems and about the future of party politics as we know it today being the “African” politics of the stomach. Those who fear Constitutional change through the Courts owe their fears to an entrenched belief and faith in our own lies; where we constantly lie to ourselves that we value our heritage and that we are a democracy, but the facts on the ground reveal hypocrisy of a novel order in our daily lives.
I urge fellow countrymen to focus their attention on the constitutional revolution presently before the Court. We all want change , and change we shall have through the Court process. We all want freedom from the foreign system of government imposed upon us by Domkrag. We all want freedom from tyranny, fear and corruption that defines the present Government. Party politics have failed us.
Hopes upon the Umbrella union of the opposition have been dashed. There is no hope of change in that direction. The only hope left is the constitutional challenge now before Court, and unless anyone has a better plan of how to bring about our common desire ÔÇô change ÔÇô then really, criticisms that do not provide a better plan of change only serve to distract attention of our focus and thereby weaken our resolve for change. I believe we the people are intelligent enough to make choices for ourselves including choices as to how to handle the past and the transition. No one person, whether a high Court judge, Kgosi or politician is qualified to think and make decisions for us on these important subjects of the past and the transition. The Court must decide just the truth and deliver justice.
