After Regional Magistrate Barnabas Nyamadzabo committed Kgosi Kgafela II, his brother Morena Mmusi together with other Bakgatla ba Kgafela royals and tribesmen for remand pending their trial, one legal eagle remarked ‘This will be a long remembered judgement with shame and as one of the most discreditable affairs in the history of our judicial system of this land.’ What is wrong with our judicial system? He continued ‘This is criminal and we cannot let this rot continue’ ‘ A man must be hanged’ for his wrong doings but justice must be fair’ ‘ What I have witnessed today is the worst crime ever in the history of our judicial system and god forbid, I may have to hang my robe and trade it with something else. Not this!!! ‘Never before as a practising lawyer have I ever witnessed a presiding magistrate assume the role of a prosecutor and sentencing someone on the basis of hearsay and on news paper articles. ‘If the judiciary will dispense injustice by handing down perverted pieces of judgement which smack of subverting the people’s government’ then this is the saddest day in our judicial system indeed’. This impartiality and the rot are unfortunate.
The past week’s events at the Village Magistrate Court and other places specifically Gaborone and Mochudi will certainly make their way into the history books. The events were indeed thrilling to many newspapers, radio stations, gossip mongers and even some politicians. All knives were out for Kgosi Kgolo Kgafela, with so much determination and vigour. Our distinguished professors from the institute of higher learning (Mma Dikolo) did not want to be outdone and like parrots joined the chorus. They were at their best sarcastic scholarly mode and recklessly provided an analytical framework that lacks the psychology of good reasoning. Some even going to the extent of mocking Kgosi Kgolo Kgafela as well as Bakgatla traditional songs. The academics were having a field day indeed. However, the UB academic ‘fongkongs’ failed to discuss the critical issues at hand, they failed to explain the role of customary law in a Republican set up like ours and state what this means for Botswana’s dual legal system.
It was expected that the distinguished professors at least with their immense knowledge share with us the interpretation of various legislative framework on the role of the institution of Bogosi operating in the hybrid system like ours and provide an explanation on what basis it can be established that the Bogosi Act and Customary Court Act are not in keeping with the Republican Constitution. Similarly it was expected that they provide an understanding as to whether Dikgosi have the powers to enforce infractions of laws within their areas of jurisdiction and whether Dikgosi in Botswana are protected from criminal prosecution for acts undertaken by them in the exercise of their respective duties, whether go kgwathisa (to flog) constitute a crime and whether it is an offence when carried out in customary law? What does the Bogosi Act say in relation to this? What is their view on the institution of Bogosi? Do they see it as archaic and incompatible with democracy and what implications does this have in Bicameralism. Do they see existence of a balancing act or the whole thing is just blown out of proportion? What about Kgafela’s good intensions such as addressing the issue of alcohol abuse and many others. Having launched a critique against what is prevailing in Kgatleng the clever boys needed to provide a detailed analysis and support their arguments with facts and not hearsay and state their position as what do they perceive as culture? Is culture to them just an occasion and an entertainment of traditional dance?
It is always admirable when UB academics get out of their closet and make their voices heard and contribute in the public debate discourse. Equally more important is the academic freedom that they enjoy and as such they must use such privileges wisely. This is primarily because academic freedom is an important aspect of democracy of mind and inextricably tied to the conviction that Professors must be democratic if they are to serve and enhance a democratic social order. Academic freedom and free speech are treasured commodities in a free society and both carry a duty to exercise reasonability so they should not be used to promote destruction of the very freedom that is enjoyed and should not constitute unacceptable hate speech. Writing with no substantial evidence and facts and in other cases absence of empirical evidence is tantamount to academic dishonesty.
The UB clever boys should take note of this and should know fully well that there is absolutely nothing wrong with critiquing and holding a different view to one else’s. As role models in society and having spent so many years in school, the expectation is that they provide a voice that can be differentiated from a newspaper tabloid. Their contribution must reflect such and must be differentiated from one done and carried out by a street momba. People can get carried away and sensationalism when they write, there is absolutely nothing wrong with that but surely a Professor’s work and voice must clearly be differentiated from that done by some one with a strong rural background. Such excitement will misshape their good contributions and personality and should not be seen as a relief from academic stress. Telling us about life experiences at secondary and tertiary level with Kgafela has no force and effect to the current case and debate. One may even be compelled to ask ‘so what? Does it really matter as to who Kgafela went to school with when and where? Unfortunately this is the kind of contribution we get from our decorated professors.
No one wanted to miss the historic moments and many people did not want to be outdone. Photo journalist and camera men were at their best and did not want to miss capturing the historic moment. It was indeed a week of fun to some people, politicians alike and some people even irresponsibly making tribalistic remarks that have the propensity to divide the beautiful nation. There was even an imagined talk about emergence of xenophobia in Mochudi. On the Sunday Standard of the 10 October 2010, I wrote an article as to whether ‘Xenophobia is on the rise in Botswana’. In that article I cautioned against making irresponsible, careless, racist and tribalistic remarks that have the potential to divide Batswana. I think one of the earnest prayers of Batswana is that this country should not plummet into the sorry state of ethnic cleansing like those experienced in Rwanda. Even though there has been mention of civil war by some desperate politicians, Batswana should jealously guard against that. No area or tribe in Botswana should be used as an excuse or as a platform to settle some scores let alone hidden agendas. Making reckless and insensitive remarks with the deliberate intension to sow seed of discord particularly against Bakgatla ba Kgafela brings shame to this country. I make bold to retaliate the statement. IT BRINGS SHAME TO THIS COUNTRY! And time is now for Batswana to stop being gullible.
The curtain had fallen down in Kgatleng and at a packed Kgotla meeting in Mochudi an old man possibly in his 80s when receiving the news about Kgosi Kgolo Kgafela’s remand in custody could not contain his frustrations and anger and suddenly burst into Afrikaans ‘Die skelms jelle mot frostain ek ne sook lawlessness yie so.’ Just as I was listening to the old timer another elderly women chipped in and said ‘Gatwe jaanong botlhodi jo bokanakana gatwe keeng’. Ka Mme ruri ‘ke botlhodi ja nta ya tlhogo’ ‘The Gods Must be Crazy’.
It was a sad day indeed and poor Bakgatla became subjects of ridicule and abuse. At work places it was bad, at bars it was extremely worse. They had become part and parcel of institutional corridor gossip and in some cases people lied out right, dramatising the whole issue. I was not spared either, I received endless emails and calls, some even anonymous and one guy on seeing me in one of the shopping malls remarked ‘O kae Khosi Kholo Khafela’. ‘Mokhata e ne e le eng tota’. However, I didn’t give a hoot for I know iron sharpens iron and I know it when a man is deliberately being crucified. I know it that there are forces at work in this country that are trying to undermine the whole Bakgatla project. Human rights are just a convenient excuse of prosecuting Kgosi Kgolo Kgafela. Nobody is above the law; even murderers are not above the law. Thieves are also not above the law. Nobody condones illegal floggings just as much as illegal killings are not condoned. Nobody should be tried and judged outside the court of law, rules of natural justice should prevail and apply. A man should therefore not be sentenced to hang even before trial.
The upsurges in popular protest against Bakgatla project in particular a project to reclaim self and their dignity has been viewed with great suspicion more particularly by politicians and other individuals. Although the government recognises chieftaincy institution for democracy and good governance, there is continued friction between politicians and Dikgosi dating as far back as colonial rule. The culture and practices emanating from the prevailing order in Botswana undermines the ideals of Bogosi.
The Chiefs have not only endured brutality but lost their voice while being further marginalised from the country’s government discourse.
The shrinking political space within which chiefs operate has also undermined their ability to mobilise and accumulate the political currency necessary for them to effect change. The defining moment for Bogosi in general is what is being presented by Kgosi Kgolo Kgafela II and Batswana must stand up and protect their heritage. Politics is a short term lease and we should not be fooled and abused by politicians to despise our Dikgosi. We must protect them, stand up for them from abuse and misuse by politicians and their hangers on. Modern systems of governance being imported culture only educate Africans to reject their own traditions and cultural heritages to the advantage of post colonial fashion ÔÇô the so called modernised democracy. Let us start the debate.
*Thabo Lucas Seleke teaches public policy in the Department of Political and Administrative studies at the University of Botswana.
