Bakgatla Ba Kgafela paramount chief, Kgafela Kgafela II has told the commission of inquiry, which is investigating the succession of chieftainship Bakgatla in Moruleng that his jurisdiction over the tribe has been confirmed by the Constitutional Court.
When explaining his relationship with senior tribal leader in Moruleng, Kgafela indicated his powers in appointing a leader in Moruleng who ruled on behalf of the paramount chief of the entire tribe. “The correct relationship is that I am his senior, he is my junior as the Constitutional court and custom law says. It is a relationship of a master and a steward in the Bible. If you read the parable of the steward in the Bible, it provides the two answers.”
In the Mmusi Pilane vs Nyalala and others constitutional court judgment in 2012 said, although the villages that make up the traditional community are situated in South Africa, the traditional community recognises as their Kgosikgolo a traditional leader who lives in Mochudi Botswana. His deputy Pilane, administers the affairs of the community in South Africa, and is based in Moruleng.
“The point I am making is that where we sit here, we can go to great lengths trying to understand what the statutes say, but we have advantage of the fact that courts in South Africa have done the work for us, they have explained these things. I can only refer you to these judgments,” said Kgafela. Kgafela submitted before the commission that in the past when there were problems in South Africa, Kgosi Linchwe was called upon to come and deal with problems concerning the former chief, the late Tidimane.
And that likewise, in 2008 to 2016, the tribe in South Africa called upon the paramount chief in Botswana, being him, to exercise his powers to depose the regent, Kgosi Pilane of his duties as kgosi, as the latter violates the tribes’ human rights and refuses to account. “Members of the tribe, comprising Mr Thari Segale, Thari Pilane, Segale Pilane who demanded that should attend to South African issues and depose Kgosi Pilane because the latter violated the tribe’s human rights. So, members of the tribe here had asked me to do exactly as Kgosi Linchwe did in the performance of his role.
Baloyi then told Kgafela that there was evidence brought before them which suggested that Kgafela’s father, the late Paramount Chief Linchwe did not involve himself in Moruleng issues like he wants to, and that he only played a more ceremonial roleâ€• He was invited and consulted if there were major issues. However, Kgafela dismissed the issues that Linchwe did it ceremonially. “Look at the role he played around the Tidimane [Pilane] issue. It was not ceremonial but legal; he even interacted with all former leaders here which even led to appointment of Pilane. Pilane’s appointment is not ceremonial but a matter of law.”
He said while to some certain degree it could be true that his father may not have involved himself as he has in the affairs of Moruleng, “I can tell you why, even myself as I sit here, I would rather not be here. If I had somebody running the affairs of the tribe legally without a headache, I would rather be at the cattle post. We intervene only when things are not run properly; otherwise I would not be responsible. Once things are sorted out, we have proper administration and everything is in order, I will be free to attend other issues in life.”
Kgafela further told the commission that the BBK bogosi was clear in the court judgments and in history of South Africa. “My father played a key role in the independence of this country, him being in Botswana… if he wasn’t in Botswana at the time things would not be as they are today. So authorities in this country have known bogosi jwa Bakgatla such that it should not be an issue as to who Kgosi is and who can appoint who. His role in the struggle of the independence of SA is well known.”
‘My relationship with my uncle, Nyalala Pilane’
When asked to comment on his relationship with the senior chief in Moruleng, Pilane who according to the tribe custom is there in Kgafela’s place, Kgafela said, “Re na le bothata gone fa.”(We have a problem here). He decried that the problem they were having amongst Bakgatla was that Pilane was not performing the role of law amongst the tribe, but doing the opposite.
“If you ask what his role is, I will say, the role of the senior leader, that he has played in the tribe up to today is the very problems that you are seeing today. That is his role. We are here in this commission struggling about many things because of his role. The tribe is in disarray because of the events that have taken place. He is not fit and proper to hold public office, that is why I have accepted his resignation in 2012, and it stands,” he submitted.
The commission heard that the department of mining in South Africa comes to Pilane and makes arrangements to mine in the tribe’s farms without a consultation and he pockets the money. “This is a very painful injustice. A group of people supported by government come and mine our farms without consulting us, and no one listens to them when they complain. We are always litigating against mining companies and Pilane over what is rightfully the people.”
The commission heard that the role of a paramount chief ordinarily based in Botswana, is appointed and enthroned in accordance with the fixed procedure of tradition. He hunts a leopard and provides the pelt for the regiment of his father to prepare for the draping. On the appointed day the tribe converges at a kgotla to witness him being draped with the leopard to formalize his assent to the throne as the epic leader of the whole tribe wherever based, whether Botswana or South Africa or new territories that may be acquired under his leadership.
Once these traditional procedures have taken place, the throne becomes fixed upon who wears the leopard skin in terms of the customary law of Bakgatla in ancient traditions. He rules over the tribe in both Botswana and South Africa. This law is set out in judgments of South African courts including the Constitutional Court. It is settled law, according to Kgafela’s version.
“Presently the royal leopard of BBK is roped upon Kgafela II, and the roping took place in September 20, 2008. Now, the point that is important is that once enthroned, the paramount chief of BBK in Botswana assumes certain royal duties and obligations towards the tribe at large,” he submitted. The core duties, he said include to protect the human rights of the tribe, protect the tribe’s land and property, protect the tribe’s history, its heritage and destiny and unite the tribe and ensure peace and harmony amongst them.
He stated, the paramount chief is obligated to do the right thing in every situation aiming at all times in producing the best results for the tribe: Accordingly whenever issues arise from the tribe, either in Botswana or South Africa touching on any of the duties highlighted, the tribe may call upon the paramount chief in Botswana to exercise his traditional powers in their favour by performing his duties aforesaid, the commission heard.
“The paramount chief has been performing this role since he was enthroned in 2008 and we would submit that the developments of this commission and events on the ground vindicate the answers to this point. What has been happening in the past six years since I came here is exactly the role which the premier asks about.”
“We have been all over South Africa with this role, we have reported crimes which are taking place to police, courts and everywhere you can think of. The soles of our shoes are worn out and we are even limping, because of this journey that we’ve been taking to all over performing this role,” he submitted.
My powers and procedures to appoint a leader in South Africa
The commission heard that the paramount chief in Botswana appoints a person of his choice to rule over the tribe on his behalf. These are prerogative powers bestowed upon the paramount chief by tradition and law, he noted. “And I have exercised those powers in favour of the tribe; I have exercised those powers to dethrone Kgosi Pilane from his seat as a Kgosi in 2012, and evidence for that is Pilane’s retirement letter and my acceptance of that letter, and the history of events leading to those correspondences.”
The tribe is free to decide whether they want me or not
According to Kgafela, if the people in Moruleng do not want to be ruled by the paramount chief in Botswana anymore, they have that right. “My father told them in 1994 that you have the right to go your own way. But you must go to the kgotla, decide on that right and let us know. But, they said, NO…we remain one! And it is stated in the resolution that they remained one,” he said.
Professor Moleleki asked Kgafela why the paramount chieftainship was hereditary while senior traditional leadership was not, among BBK tradition. And Kgafela’s response was that, “The constitution of South Africa recognises traditional communities and their customs, and when you go to the Act, there is a common theme that one thing must be done according to customs and traditions of that community. The customs and tradition of BBK community may be different from other customs, but it is recognized. And the way it is with us may be unique, it’s such that BBK tribe live in two countries.”
He stressed that borders came only yesterday and that they were not their doing. “The point I am making is that where we seat here, we can go to great lengths trying to understand what the statute say, but we have advantage of the fact that courts in SA have done the work for us, they have explained these things. I can only refer you to those judgments. This arrangement of BBK is unique, it’s not our doing, but it is what we are settled with. ,” said Kgafela
Presidential Commission of Inquiry into the Review of the Constitution held a meeting in Serowe this week. The meeting was to accord Bangwato, just like other tribes, a platform to give their opinions, contributions and what they think is the horse power and limitations of the current Constitution of Botswana.
Bangwato Regent, Kgosi Serogola Seretse said, he is of the understanding that the Commission has not come for anything apart from getting their opinions on how things could be made better. His contribution was that he solely knows of only two social positions in the world; Dikgosi and Pastors. He said other positions are just benedictions. He further urged that, Batswana should respect God’s ordained protocols such as Dikgosi and Pastors.
Seretse pointed out the importance of acknowledging and appreciating Dikgosi as nation builders. He cautioned and warned that, the Commission should ensure that their dealing with Dikgosi is harmonious. He called for an amendment to be made on the ‘National Order of Precedence’ noting that Dikgosi are put at number 11, but should at least be taken a little higher to number 7.
One resident, Tshepo Moloi while giving his contribution said there must be provisions of Social Justice that ensure equal distribution of resources to all citizens. He said this provision should entail an obligation that all citizen have equal opportunities to different Government Initiatives. Moloi substantiated that, all ‘Presidential Commissions’ be engraved on the Constitution
Alfred Thogolwane who is as well a resident of the biggest village in the Central District, pointed out the need for preservation of the country and resources thereof, saying “it must dawn onto all that, the calabash that fetches water for the family cannot fixed once its broken.” Another resident, Keikantsemang Sebedi advocated for Polygamous marriage, saying that men should marry as many wives as they please. She said there is no need for any socioeconomic assessment done on men who wish to marry more than one wife.
She advised that, the country should benchmark from the Zezuru culture that does it, with no complexities. On the other hand, Sebedi said that, there must be considerations done on the Old Age Pension. She said people who earned P4000 should not receive the old Age Pension upon their fullness of age. Forshia Koloi called for amendments on Section 77 and all the provisions that speaks to the subject of Bogosi and the powers infested in them. He said they should be made more detailed and avoid ambiguity in clauses.
Mr Tlhaodi said there must be Land Audits done in the country. Citing an example of the Tati Land as one that should be thoroughly audited. He further advised that, Election Day be put on the Calendar. He said, if it happens that the day be a Saturday, there should be some special dispensation for the 7th Day Adventist Church members to take part in voting without compromising on their day of worship. Tlhaodi added that there must be People’s Complaint Commission in the country.
Speakers emphasized the need for the country to review the exercise of ‘Political Party Funding’. They articulated that lack of funding political parties’ results in political parties resorting to finding funds for themselves. They reiterated that sometimes going to the extent of getting funds through illegal means. Bangwato agreed in one accord that they want the President be tried whilst in office if suspected of any criminal offences. This was revealed in their contributions. They pointed out that, the law should not to wait until the end of their tenure.
For his part, the Deputy Chairperson of the Commission Johnson Motshwarakgole expressed gratitude to the residents of Serowe. He applauded women for their kindness saying it is only them, who always take responsibility for doing things amicably in the society.
Parliament has revealed that it plans to rollout a Community Score Card (CSC) exercise as part of sweeping reforms to its role and mandate among others.
The planed shakeup, along with the rollout of CSC will see creation of new Parliamentary Portfolio Committees on Health, HIV&AIDS, Education and Skills Development, Trade and Economic Development, Agriculture, Lands and Housing and Local Governance and Social Welfare. Parliament informed government ministries and departments that the CSC is a participatory, community based monitoring and evaluation tool that enables citizens to assess the quality of public services and interact with services providers to express their concerns.
According to Parliament, the CSC will assist to inform community members about available services and their entitlements and to solicit their opinions about the accessibility and quality of certain services related to the portfolio committees mentioned. It said the main objective is for Parliament through identified oversight committees is to conduct a participatory monitoring and evaluating process that puts ownership and responsibility for delivery of services in the hands of both the Government and the service recipients.
“Through scorecards developed around identified sectors and services, communities and implementing departments remain in touch with progress made through the programme delivery cycle and are able to respond timely to bottlenecks,” the National Assembly said. Some of the measurements and expected outcomes for the rolling out of the CSC include among others, improved monitoring and economic evaluation, to determine the impact of spending, so as to be able to direct resources from where they having the least benefit to those projects and programmes where they will have a larger positive impact.
The National Assembly explained further that this could result in a willingness to close down ineffective programmes and institutions and not to implement projects that do not deliver adequate returns, improved productivity in the public services, especially given the substantial pay increases.
The National Assembly believes that the rolling out of CSC is also expected to result in efficiency savings: many public services and programmes could be delivered more effectively at lower costs, by improving management and accountability, and making use of e-services. “This would yield financial savings that could be used for development programmes or reducing the deficit,” the National Assembly said.
The exercise is also expected to result in “Careful scrutiny of subsidy schemes and termination of those that do not address market failure or assist truly needy Batswana.” The National Assembly revealed that proposed Parliamentary Portfolio Committee on Health and Wellness has been established in accordance with the Standing of National Assembly of Botswana. It explained that the mandate of the Committee is mainly to exercise Parliamentary oversight and scrutiny over Government Ministries, Departments and Agencies with portfolio responsibilities in respect of Health and HIV/AIDS.
“There is need to identify reasons for inefficiency and poor outcomes and ensure that health system reform improve productivity and value for money. Key areas of focus for scorecard, availability of drugs, staffing ratios, accessibility of health services, speciality care and services and sexual reproductively health,” the National Assembly said.
Another proposed Committee is on Local Governance and Social Welfare. The mandate of the Committee is mainly to exercise Parliamentary Oversight and Scrutiny over Government Ministries. Departments and Agencies with Portfolio responsibilities in respect of Local Governance and Social Welfare.
“Strategies under NDP 11 to improve outcomes of social uplifment include; diversiﬁcation of rural economies, development and support of small businesses, provision of social safety nets, eradication of absolute poverty, provision of quality and equitable education and harmonisation of social protection programmes,” said the National Assembly. It said social nets need to be improved so as to target these most in need (at present some social safety nets benefit many people who are not the most needy, but also miss out some of those who are needy).
“Some social development policies more broadly should also aim to reduce household vulnerability to shocks such as those arising from fluctuations in agriculture, climate change, incomes and employment and improve their ability to handle shocks, thereby building household resilience,” the National Assembly said.
Another Committee established is on Agriculture, Lands and Housing. The mandate of the Committee is mainly to exercise Parliamentary oversight and scrutiny over Government Institutions, Departments and Agencies with portfolio responsibilities in respect of Agriculture, Lands and Housing.
The National Assembly said the average growth rate of the agricultural sector since the beginning of National Development Plan 11 (NDP11) (i.e. during the 2017/2018 and 2018/19 financial years) was 2.5 percent, making it the slowest growing sector of the economy, in line with its historical performance.
“Over the same period, its share of GDP has been stagnant at around 2 percent. The sector also contributes job opportunities for about 80 000 adults. Food security has become paramount since the onset of the corona virus pandemic,” the National Assembly said. The National Assembly said the Government realises the need to increase food production for products in which Botswana has a cooperative advantage such as beef, grains and other horticulture products.
The Committee on Finance, Trade and Economic Development has also been established. One of the mandates of Committee would be to exercise Parliamentary oversight and scrutiny over government ministries, departments and agencies with portfolio responsibilities in respect of Finance, Development, Trade and Industry.
“The sector is at the core of industrialisation aspirations and strategies for economic development in Botswana. Manufacturing in particular can be the driver of economic growth through technological improvements and innovation,” the National Assembly said. Hence, it said, the development of the sector could also foster export diversification and export led-growth in Botswana while benefitting from the African Continental Free Trade Area (AFCFTA).
Two senior members of Directorate on Corruption and Economic Crime (DCEC) have threatened legal action against Directorate of Intelligence and Security (DIS), it has transpired. The threat is contained in an answering affidavit of Director General of DCEC, Tymon Katlholo in which he is seeking an interdiction from High Court to stop the DIS from accessing investigation files at his office.
After the DIS detained DCEC officials Joao Salbany and Tsholofelo Bareetsi on December 16, 2021, they filed an official complaint against DIS and some officials. They complained about abuse of office by DIS and five officers. Salbany and Bareetsi also complained about unlawful detention by DIS and unlawful dissemination of classified information contrary to Section 44 of Corruption and Economic Crime Act. “The DIS interviews were premised on information divulged during the course of official DCEC work product, that is the Monday media brief meeting,” they wrote.
They further requested leave to institute a civil suit against the DIS and its officers, and invariably the State for inhuman and degrading treatment they suffered and unlawful detention. They also pondered a declaratory seeking a sanction against the DIS and Botswana Police Service (BPS) and clarification of the role of BPS officers seconded to DIS.
“The envisaged suit against BPS and DIS officers and the DIS will inevitably centre on investigations done by the DCEC and the scope of the protection availed to DCEC officers for conduct done in the course and scope of DCEC official duties.” The duo said it was self-evident from the conduct of the DIS officers that there was nothing urgent about the information required by the DIS, justifying their detention at its Sebele facility from 08:30 hours on December 16, 2021 until 02:00 hours on December 17, 2021.
They reasoned that the information required by the DIS could have been obtained by a simple request to DCEC Director General. “What the DIS did was to seek to intimidate officers of the DCEC whom they knew were carrying out investigations against some of the DIS officers who were part of their investigation team. This turn of events has a chilling effect not only on the functioning of the DCEC but also on the official conduct of officers of the DCEC as to how they conduct their official duties.”
They concluded by stating that in the event the request is granted, they would further request to be advised as to the provision of legal representation as the unalwful detention and the degrading and inhuman treatment by the DIS was in relation to matters conducted by and on behalf of the DCEC.