Bots constitution challenged in court
A Paramount Chief has challenged the legitimacy of Botswana’s constitution before the Lobatse High Court, saying it was imposed without due consultations at independence in 1966.
The leader of the Bakgatla, Paramount Chief Kgafela II, also wants Attorney-General Athaliah Molokomme to recuse herself from representing the state because she is allegedly biased.
The case arose after Paramount Chief Kgafela II was charged with illegally flogging people Kgatleng District.
The traditional leader then challenged the legal authority of the government of Botswana to prosecute him under the constitution.
He argues that the constitution of Botswana lacks the legitimacy upon which all constitutions must rest.
According to Paramount Chief Kgafela II, the constitution must be tested against two fundamental principles; the consensus of the governed, and the law of God.
“The constitution document and the administrative systems that support its life are a fraud and they must be set aside.
“Again, the constitution does not reflect consensus or the will of the people. Instead it suppresses the will of the people,” he says.
The Paramount Chief further argues that the constitution and its daily application unambiguously offends against the law of God as it imposes foreign laws upon Batswana when God allows people to live in accordance with the law of their forefathers.
“The law of God mandates us to respect our kings, yet the constitution and its daily application treats kings like trash…
“There is no evidence that (the) Bakgatla ever agreed to the constitution as advocated for by the late Sir Seretse Khama.
“On the contrary, there is evidence that (the) Bakgatla and other tribal leaders objected to the constitution because the people had not been consulted.”
Paramount Chief Kgafela II tendered a letter dated December 30, 1965 and authored by the tribal leaders of Bakgatla, Bangwaketse, Batlokwa and Balete, in which they complained about the lack of consultation.
He argues that such complaints went unheeded by Former Presidents Seretse Khama and his then Vice President Sir Ketumile Masire, who ascended to the highest office in 1980.
“Khama and Masire saw themselves as qualified to decide the future of everyone else in the country. “There is also evidence that Phillip Matante (former opposition leader of the Botswana People’s Party) also raised concerns during the constitutional talks in London.
“He later withdrew from the talks in protest.” The Paramount Chief adds: “In any case, any consultation that Masire and Seretse would have conducted was negligible because the constitution was, as is now, written in English and would not have been understood by the majority of Batswana.