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ZCC Botswana takes Lekganyane to court

ZCC Bishop; Barnabas Lekganyane

Some members of Zion Christian Church (ZCC) in Botswana have this week dragged the church together with its Bishop Barnabas Lekganyane before High Court for breaching the church constitution.

According to court papers seen by Weekend Post, the church members basically seek the court to declare that the church have violated their governing constitution and further to compel them to comply with it.

The church members being Tshiamo Tladi, Khumo Gaorengwe, Mogomotsi Bogosi, Stanley Lejone, Daniel Mathibe, Lesetse Koothawo, Mmusi Moeng, Mmatli Lopale, Lebogang Bose, Faneck Bareki and Tony Joseph contend categorically that whereas the constitution is a supreme governing document binding the church and its members – it is however continuously dishonoured.

“The church members (applicants) have come to court contending that the church is not living up to the dictates of its constitution and set out fully the circumstances that show that the church is wanting, in its compliance with its constitution,” the 11 church members state in the court papers before Justice Michael Mothobi of Gaborone High Court.  

For example, they allege that since the constitution was adopted in 2009, there has never been an Annual General Meeting (AGM). They also contend that the church, much against the constitution, has since 2009 failed to appoint a Minister to run and head the church in Botswana.

According to the court papers, the church members also contend that the power to appoint the Executive Council rests with the Minister. However, they assert that since the church has never appointed anyone to this position, then the Executive Council unconstitutionally came to being.

“They further contend that the church is operating without putting in place some of the structures it undertook to have in place. For instance, Clause 27 provides for the Women’s Committee and Clause 28, provides for the Property Committee and these committees are not in place and have never been in place,” they state.

The Applicants have also submitted that as members they are entitled to participate and vote at AGM and in the absence of any such meeting they are consequently deprived of the opportunity to shape the direction of the church.

“The Applicants also contend that they do not know how church monies are used as financial accounts are not presented at any AGM as there is no AGM.”

The 11 church members maintain in court papers that the legal rights infringed vary from denying the members the opportunity to vote at AGMs by not holding any AGM, and Section 2 of the Church’s Constitution shows that the church is a church of members, and not just one person.  

According to the ZCC members, the failure to hold AGM’s tempers with the governance of the Church and with the opportunity for the members to input in the shaping of the church’s future. In addition they say it also limits transparency in relation to the Church’s financial standing.

“The failure to appoint a Minister has stagnated the existence of a lawfully appointed Executive Council which is only to be appointed by the Minister. The failure to appoint such a Minister has left unanswered question on the members of the Botswana church, which uncertainty has left the church in a state of crisis. As a result of this, the Church is being run from the outside as no one is clothed with ministerial powers in Botswana.”

According to the papers, in terms of the Clause 13.1 (a) of the church Constitution, the Minister is vested with the power to appoint an Executive Council for running of the Church. The 11 members insist that: “as the Minister has not been appointed, it is unclear who appointed the current Executive Council, hence our submission that the existing Executive Council is not properly in office and has been appointed unconstitutionally.”

Bearing this in mind, they submit that the past decisions made by the current Executive Council be reviewed as they came into office unconstitutionally.

Under the Constitution, they say provision is made for the establishment of certain committees which, to date, have not been created. It is in the interest of the member of the Church that these committees be established in the interest of the growth and maintenance of the Church, they posit.

“We accordingly submit that the ZCC members before court have shown that their rights have been violated and that the reliefs they seek are justiciable. The prejudice suffered as a result of not holding AGMs, appointing a Minister and some structures has also been adequately explained. Eg, no accountability, no clear leadership and no structures in place to deal with fundamental issues affecting the church membership.”

This being said, the members explain that the next logical step would be to seek an order before this Honorable Court that a new Council be appointed. Stemming from this, they also emphasise that another logical step would be to seek an order that all the decisions made by the current Executive Council be subject to review, not by the court but by the church itself.

ZCC failed to file heads of argument to respond and instead wanted to deal with the points of law. The parties agreed to and drafted a consent order while the arguments in the matter were postponed after August since a new case was filed and therefore needed to be attended first.

Church member files new application saying constitution in question is fraud

Church member, and a lawyer has filed a new application stating that the 2009 constitution currently in use by local ZCC – and the subject of the dispute – is just a fraud and was not duly registered at Registrar of Societies.

He stated that the constitutional violation matter does not therefore hold water as it is based on an “illegal constitution.” According to Jost Isaacs in his head of arguments, the 2009 constitution is not valid nor authentic while the 1994 one is the one presently applicable.  

The parties will argue the matter of authenticity of the constitution first on 19th August 2016 before the one on its violation.

ZCC was represented by South African Advocates Soraya Skhassim (SC) and Lenette Pillay while attorney Uyapo Ndadi stood in for the other 11 church members.

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Free at last: Ian Kirby Speaks Out

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Justice Ian Kirby

The outgoing President of the Court of Appeal, Justice Ian Kirby, shares his thoughts with us as he leaves the Bench at the end of this year.

WeekendPost: Why did you move between the Attorney General and the Bench?

Ian Kirby: I was a member of the Attorney General’s Chambers three times- first in 1969 as Assistant State Counsel, then in 1990 as Deputy Attorney General (Civil), and finally in 2004 as Attorney General. I was invited in 2000 by the late Chief Justice Julian Nganunu to join the Bench. I was persuaded by former President Festus Mogae to be his Attorney General in 2004 as, he said, it was my duty to do so to serve the nation. I returned to the Judiciary as soon as I could – in May 2006, when there was a vacancy on the High Court Bench.

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Civil society could rescue Botswana’s flawed democracy’ 

6th December 2021
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Botswana’s civil society is one of the non-state actors that could save the country’s democracy from sliding into regression, a Germany based think tank has revealed.  This is according to a discussion paper by researchers at the German Development Institute who analysed the effects of e-government usage on political attitudes In Botswana.

In the paper titled “E-government and democracy in Botswana: Observational and experimental evidence on the effects of e-government usage on political attitudes,” the researchers offer a strongly worded commentary on Botswana’s ‘flawed democracy.’  The authors noted that with Botswana’s Parliament structurally – and in practice – feeble, the potential for checks and balances on executive power rests with the judiciary.

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Bangwato at loggerheads over Moshupa trip

6th December 2021

Bangwato in Serowe — where Bamagwato Paramount Chief and former President Lt. Gen Ian Khama originates – disagree on whether they must send a delegation to dialogue with President Mokgweetsi Masisi’s family in Moshupa. Just last week, a meeting was called by the Regent of Bamagwato, Kgosi Sediegeng Kgamane, at Serowe Kgotla to, among others, update the tribe on the whereabouts of their Kgosi (Khama). 

Further, his state of health was also discussed, with Kgamane telling the attendees that all is well with Khama. The main reason for the meeting was to deliberate on the escalating tension between Khama and Masisi — a three-year bloodletting going unabated.

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