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Minister Kgafela begs self-exiled brother to return

Kgafela

A heartfelt message of good wishes from Minister Mmusi Kgafela to his self-exiled brother and Bakgatla paramount chief, Kgafela Kgafela II, this week urged the latter to consider calls for his return to Botswana to visit his tribe and family.

“On behalf of our father’s people, your people, I wish to inform you that Bakgatla are thinking of you, and they miss you dearly. They request that you should find time to visit them. Please come to Botswana to spend some time with them, to see and greet them,” said Mmusi as part of his 50 years birthday message to Kgafela Kgafela II, who has vowed never to set foot in Botswana.

However, Mmusi Kgafela did not shed light on how his brother will deal with the arrest warrant, which triggers once he sets foot in Botswana.

The Bakgatla Kgosikgolo, who went on a self-imposed exile in 2012 to South Africa, faces a decade-old-plus warrant of arrest issued by the Village magistrate court after his non-appearance in Court over criminal charges relating to flogging of his subjects. Kgafela described the charges as ‘political persecution’ before jetting out to his second home in South Africa, Moruleng, where he is also a Chief.

Asked over his views on the complications around the warrant of arrest, Mmusi, a lawyer by training, said, “what people need to understand is that a warrant of arrest is not a prison sentence.”

He continued: “There is a need for reconciliation and discussions to put all these issues behind us. We need to move on. What I have also realized is that the state is not keen on pursuing the matter as they have not sought his extradition,” he said.

In 2017, the then Minister of Defence, Justice, and Security, Shaw Kgathi, told Parliament that the arrest warrant issued against Bakgatla Kgosi-kgolo is still valid.

“….because a Court order once issued remains valid and enforceable unless it is rescinded by the Court that issued it, in this case being Village Magistrate Court. It may also be revoked by a higher court being the High Court or the Court of Appeal,” Kgathi said.

As things stand, the Government will arrest Bakgatla Kgosi Kgafela II if he crosses over to Botswana, Parliament heard.

Kgathi responded to a question by the then Mochudi West Member of Parliament, Gilbert Mangole, who wanted to know if the arrest warrant imposed on Kgafela was still valid.  Further, he wanted clarity on what it would take for the Government to trigger the removal of the warrant to enable Kgosi to visit his tribe in Botswana if he so wishes.

Could Mmusi be under pressure to facilitate Kgafela’s return?

Although Mmusi denies the claim, some royal sources opine that he (Mmusi) is under pressure to help President Dr. Mokgweetsi Masisi fulfill his 2019 electoral campaign pledge to the tribe. The President had pledged that he would “not rest until their chief, Kgosi Kgafela Kgafela II, is back home.”

Mmusi, however, says Masisi has not personally engaged him on Kgafela.

Kgafela’s former lawyer, Advocate Sydney Pilane, has in the past told this publication that he suspects that as the leader of the BDP, President Masisi hopes that if he brings Kgosi Kgafela back, BaKgatla may be grateful to the BDP, and benefits might accrue in consequence.

While Mmusi says the matter will need to be discussed and dealt with, private attorney Kgosiitsile Ngakaagae who was prosecuting Kgafela, warned that there is nothing to address or facilitate.

“There is no need for political intervention. Kgosi Kgafela is officially a fugitive from Justice. It’s for the Directorate of Public Prosecutions (DPP) to issue a nolle prosequi (we shall no longer prosecute) to enable his return. Constitutionally the DPP cannot be dictated to by politicians. The matter is beyond the President unless he violates the DPP’s constitutional mandate,” charged Ngakaagae.

“An arrest is intended to bring someone to Court. Secondly, a party who has become aware that a warrant has been issued against them can apply to Court before it is implemented for it to be discharged.”

The only option for the state currently, which the state is reluctant to pursue, is to drop the charges and withdraw the warrant of arrest or decide on a deliberate non-enforcement of the warrant, according to lawyers who spoke to this publication.

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Boko’s rivals plan new party

15th August 2022

Following their loss to the Duma Boko-led lobby in the Botswana National Front (BNF)’s national congress last month, some members of the party are reportedly considering forming a new political party.

According to members, the new party will be formed after they receive a tip-off that the BNF will do all it can to ensure that the aggrieved members do not participate in the 2024 national elections. This will reportedly done through a carefully orchestrated primary elections elimination campaign. 

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13 AUGUST 2022 Publication

12th August 2022

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DIS blasted for cruelty – UN report

26th July 2022
DIS BOSS: Magosi

Botswana has made improvements on preventing and ending arbitrary deprivation of liberty, but significant challenges remain in further developing and implementing a legal framework, the UN Working Group on Arbitrary Detention said at the end of a visit recently.

Head of the delegation, Elina Steinerte, appreciated the transparency of Botswana for opening her doors to them. Having had full and unimpeded access and visited 19 places of deprivation of liberty and confidentiality interviewing over 100 persons deprived of their liberty.

She mentioned “We commend Botswana for its openness in inviting the Working Group to conduct this visit which is the first visit of the Working Group to the Southern African region in over a decade. This is a further extension of the commitment to uphold international human rights obligations undertaken by Botswana through its ratification of international human rights treaties.”

Another good act Botswana has been praised for is the remission of sentences. Steinerte echoed that the Prisons Act grants remission of one third of the sentence to anyone who has been imprisoned for more than one month unless the person has been sentenced to life imprisonment or detained at the President’s Pleasure or if the remission would result in the discharge of any prisoner before serving a term of imprisonment of one month.

On the other side; The Group received testimonies about the police using excessive force, including beatings, electrocution, and suffocation of suspects to extract confessions. Of which when the suspects raised the matter with the magistrates, medical examinations would be ordered but often not carried out and the consideration of cases would proceed.

“The Group recall that any such treatment may amount to torture and ill-treatment absolutely prohibited in international law and also lead to arbitrary detention. Judicial authorities must ensure that the Government has met its obligation of demonstrating that confessions were given without coercion, including through any direct or indirect physical or undue psychological pressure. Judges should consider inadmissible any statement obtained through torture or ill-treatment and should order prompt and effective investigations into such allegations,” said Steinerte.

One of the group’s main concern was the DIS held suspects for over 48 hours for interviews. Established under the Intelligence and Security Service Act, the Directorate of Intelligence and Security (DIS) has powers to arrest with or without a warrant.

The group said the “DIS usually requests individuals to come in for an interview and has no powers to detain anyone beyond 48 hours; any overnight detention would take place in regular police stations.”

The Group was able to visit the DIS facilities in Sebele and received numerous testimonies from persons who have been taken there for interviewing, making it evident that individuals can be detained in the facility even if the detention does not last more than few hours.

Moreover, while arrest without a warrant is permissible only when there is a reasonable suspicion of a crime being committed, the evidence received indicates that arrests without a warrant are a rule rather than an exception, in contravention to article 9 of the Covenant.

Even short periods of detention constitute deprivation of liberty when a person is not free to leave at will and in all those instances when safeguards against arbitrary detention are violated, also such short periods may amount to arbitrary deprivation of liberty.

The group also learned of instances when persons were taken to DIS for interviewing without being given the possibility to notify their next of kin and that while individuals are allowed to consult their lawyers prior to being interviewed, lawyers are not allowed to be present during the interviews.

The UN Working Group on Arbitrary Detention mentioned they will continue engaging in the constructive dialogue with the Government of Botswana over the following months while they determine their final conclusions in relation to the country visit.

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