I was present at the Mochudi kgotla meeting of 30th April 2011. It was at this meeting when Kgabo informed his morafe of his intentions to institute legal proceedings against the government of Botswana to set aside the Botswana constitution. In this article I would like to recap on what was said at the meeting for the benefit of the reader who was not fortunate enough to attend this very important meeting and as a result having to rely on distorted information from ill informed news reporters.
In about September or October this year, Kgosi Kgolo Kgafela II, accompanied by the Bakgatla royal family, some Dikgosana and members of Morafe, shall launch civil proceedings against the government of Botswana at the High Court in Lobatse. The relief sought shall, amongst others, be the following, namely a Court order (1) setting aside the constitution of Botswana and all laws made under its authority , (2) postponing enforcement of the order to a specified date in the near future pending the drafting of a new constitution by Batswana through proper consultation with all tribal communities and interested persons. This development is expected to mark the beginning of real and meaningful change, and a pleasant fresh start for all Batswana. I believe we all crave a fresh beginning considering the mess we have now found ourselves in as a nation.
Litigation as I understand it is about three considerations or concepts. It is about (i) Facts, (ii) Law and (iii) Justice. The first two (facts and law) are the responsibility of the litigant to place before the Court. The last (Justice) is the responsibility of the Court to deliver. I will address each of them, as discussed at the Kgotla meeting and shed my own opinion about the third which was not discussed at the meeting.
FACTS: (a) A Constitution is a piece of paper drawn by ordinary (if not sub ordinary) humans. It is not a document cast in stone as many people have been led to believe; nor is it a God sent document. It is a legal document, subject to the same laws that regulate all legal documents. (b) A constitution is however a special legal document. It is special in the sense that it is supposed to be, and is said to be, a reflection of agreement of the people of Botswana as to how they wish to run the affairs of their country and regulate their daily lives. It is therefore a special agreement; and like any other, it is subject to the law that determines validity of agreements. (c) Whilst the Botswana Constitution may be said to represent agreement of Batswana at the time of independence in 1966, evidence at hand, some of which was revealed at the Kgotla meeting, shows quite shockingly that Batswana were not consulted on or about the Botswana constitution before it was made into law in 1966. (d) The same evidence shows that quite apart from the glaringly conspicuous lack of consultation, a significant section of the Bechuanaland community actually objected to the lack of consultation prior to the constitution being made into law. This is a very significant fact, which must never be treated lightly. But, despite their objections, through their Dikgosi and members of the opposition parties, former presidents (Sir) Seretse Kgama and (Sir) Quett Johny Ketumile Masire, sold out and betrayed their own people by proceeding to conclude the constitutional talks, and passing the constitution into law without any proper consultation. The price awarded to these two “gentlemen” for this cruel betrayal of their people was the most prestigious honours of her majesty the Queen. They were given knighthood, hence their titles of (Sir). If anyone ever wondered what it is that Seretse and Ketumile did to deserve knighthood from the Queen, here is the answer. The two of them, usurped authority of the people and saw themselves as uniquely qualified to decide the future of everyone else within the protectorate without caring to hear from those affected as to how they wished to determine their future. (e) Not only that, the minutes of the constitutional talks of 1966, (derived from the constitutional file which Kgosi Kgolo Kgafela extracted from Botswana notes and records) show that Sir Ketumile went an extra mile.
When asked a direct question concerning the objections raised by Rre Matante and Dikgosi, Rre Masire didn’t tell the truth to those present within the talks. He was economic with the truth by claiming that Batswana tribal communities had been consulted. He said he held about 150 meetings with them despite the fact that the letter of objection written by four Dikgosi (Kgosi Kgolo Linchwe II, Kgosi Kgolo Bathoeng, Kgosi Kgolo Mokgosi and Kgosi Gaborone) dated 30th December 1965 was delivered just over one month before the constitutional talks of 14th February 1966. Though Rra Gaone denied on BDP TV oops! Sorry BTV that there is such a document, it’s there at the National Archives for you the reader to verify for yourself. This is one of the two letters from the Constitutional file which Kgabo read out in public at the meeting under discussion. Being economic with the truth was a serious misrepresentation, and a stand-alone fraud, as well as part of the cumulative fraud pursued by him Rre Masire and Rre Seretse to decide the future of the rest of Batswana without their participation. I may digress a little to remind the reader here that when Rre Masire was asked a few weeks ago on a television programme as to why Rre Matante pulled out of the constitutional talks, Rre Masire’s answer was that Matante pulled out for personal reasons. We now know, after Kgabo read out the minutes of Rre Matante’s speech in London, that this honourable man, Rre Matante, pulled out because he did not want to be part of a fraud against his own people.
This is exactly what he said. So again Rre Masire was very economic in telling the Nation the truth just recently. (f) In the same style the constitution was made into law, all other laws passed under its authority by subsequent parliaments were passed without proper consultation with the subjects of the law. (g) The entire constitution, and the majority of key legislation made under its authority, are undoubtedly colonial laws promoting colonial culture. The constitution, and such laws, in fact oppresses indigenous law and culture contrary to the spirit of true independence advocated by various international instruments, which the Botswana Government has signed and undertaken to be bound by. The recent Lesetedi and Nyamazabo judgments in the prosecution of Kgosi Kgolo Kgafela and Bakgatla tribe’s persons is enough proof of this fact. More and more evidence will come to the fore as the prosecution continues. Thus the constitution is effectively a document living in constant and continuous violation of Botswana’s international obligations and its human rights obligations to its own people.
ÔÇó The facts narrated reveal the following key features: lack of consensus necessary for validity of agreement; fraud and misrepresentation both of which concepts negate agreement and thirdly, a clear violation of human rights values which demand that a people be governed in terms of laws of their free choice, often meaning the laws of their forefathers. The common argument I hear since the Kgotla meeting is that Batswana have accepted the constitution through periodic elections and compliance with the laws. But hang on there a moment. It is for the government to raise that argument which is well anticipated, from what I have gathered. I recall very well the words of no other but High Court judge Rre Phumaphi when he expressed the view that the Botswana constitution was not for Batswana and deserved no respect at all. These utterances were allegedly made during the Balopi commission a few years ago it’s just that we Batswana are for so ever quick to forget even with things that affect our lives daily. There is more on this interesting issue of alleged acceptance by conduct including the reaction of the whole Botswana populace to the concept of elections; and of course, the significance of the many cases that have come before the Courts, people complaining about the constitution. Morena Mmusi dealt with this aspect in his remarks at the meeting.