Kgafela II trashes Constitutional Review

• Bakgatla demand secession of Kgatleng Tribal Territory

The explosive letter of demand sent to President Mokgweetsi Masisi by Bakgatla Kgosikgolo, Kgosi Kgafela II dated December 2021 wherein among a myriad of demands is that Bakgatla Tribal Territory be ceded from the rest of Botswana gathers dust at the Office of the President. Kgafela II, who lives in exile in Moruleng – South Africa, dismissed the ongoing Constitutional Review process as inconsequential.

I would like to express my gratitude for the decisions you have made to open dialogue in Botswana leading towards Constitutional reform. We understand you have advanced a step ahead by appointing a Commissioner to lead the process. We hear that Mr David Magang is the Commissioner. Whilst appointment of a Commissioner, or person to lead the Constitutional review, may have been done differently, we hold Rre Magang in high esteem. However, we must caution here that, ultimately, your government needs to pass legislation to legitimize and guide the Constitutional reform process. Otherwise, right thinking members of society all over see the futility of the exercise as presently constituted, and will not have confidence in your procedures. Nonetheless, you stand out as the first President of Botswana to take any tangible step towards constitutional reform. Whatever the outcome of the exercise may be, and whatever the motive, credit must accordingly be given where it is due. This much said about Botswana, we now turn to the main topic of this letter.

1.   There are certain pertinent matters that we must make clear at the very beginning, and record our Bakgatla special requests to your Excellency. Whilst we Bakgatla Ba kgafela, and I (Kgafela ii) desire to experience a new future for Botswana, under a new constitution, our unique situation as Bakgatla requires recognition and special attention. The history of Bechuanaland – Botswana and Bakgatla from 1885-2021 is well documented. It is available in Prof Fred Morton’s book: When Rustling became an Art, my recent publication –The Last Frontier, Baloyi Judicial Commission of Inquiry Report of 2019, and the Lord Hailey Commission report. Lord Hailey stated in his report that: Bakgatla land belongs to Kgosi & his morafe. Her Majesty the Queen of England accepted that position in statutory title, which has not changed by lawful process to this date. All those statutes since 1899 (and Commissions of Inquiry reports) are as valid today as they were at the time of their promulgation/reporting. Even the Tribal Territories Act is still law in present day Botswana because it has not been repealed.

2.   There is nothing in law and history to gainsay a glaring truth that:(a) Bakgatla Ba Kgafela are the lawful owners of Bakgatla Tribal Territory, as defined in the Tribal Territories Act and Her Majesty’s Proclamations; (b) Sir Seretse Kgama and BDP party expropriated our country in 1966, without consultation or agreement with Bakgatla; against international law, and against common & customary law concerning the taking of another’s property. Simultaneous with Seretse & BDP taking our country, they imposed a foreign system of human affairs called ‘western democracy’ or ‘multi-party democracy’ upon us in our country; yet again without consultation or agreement. That system has gradually deteriorated the quality of life for our people to the present day of total despair.

3.   Bakgatla do not want to live under that system anymore, whatever name it goes by.  We don’t want to be detained by its faults in our progress to the future. We want to rule ourselves in (our country) where we may practice and live our heritage without undue restrictions, including the heritage of being led by a Kgosikgolo (King), and not a politician. There is no logic in our people being driven to vote for a leader every five years, when we already have provably competent traditional leadership amongst us. This desire is consistent with international law (self- determination) and the law of property ownership.

4.   In  addition,  we  have  ambitions  of  the  future  which  may  not  necessarily  coincide  with ambitions of other Batswana in their respective localities. For instance, the rest of Botswana may wish to continue with western democracy and leadership by politicians, whilst we don’t, because we have seen the system clearly for what it represents. Moreover, our Bakgatla Kingdom extends into South Africa. Different considerations apply. It has been so, even during British colonial rule. That is why the colonial government always excluded Bakgatla land when it passed legislation for Bechuanaland Protectorate. A case on point is the Bechuanaland Protectorate (Lands) Order of 16th May 1904, which states at section 1:

For the purposes of this Order the expression “Crown lands” means the lands abandoned as aforesaid by the Chiefs Khama, Sebele, and Bathoen, to wit, the lands bounded on the West by the native reserves of the Bangwaketsi, the Bakwena, and Bamangwato, on the North by the Shashi River, on the East by the Transvaal, and on the South by the territory of Barolongs always excepting the territories of the Chief Moghosi of the Bamaliti, and Linchwe of the Bakhatla, all of which Native Reserves and territories have been or shall be more particularly described in Proclamations of His Majesty’s High Commissioner for South Africa(my underlining for emphasis).

5.   The key words are: “always excepting the territories of the Chief Moghosi of the Bamaliti, and Linchwe of the Bakhatla”. We cannot speak for Bamaliti or other tribes & peoples of Botswana because we do not have a mandate to do so. They have their own Dikgosi and representatives. We wish to focus for now only on us Bakgatla, and our demand for restoration of ownership rights to our country. We do not want our ownership issue lumped in generalization with the rest of Botswana issues. We say this with respect, recognizing always that we have family, friends’ relations and other investment across Botswana. We love Botswana. As such, we do not want to burden anyone with our uniqueness, or they becoming an albatross in our march into the future. Pertinently, we do not want our future held hostage to any delays or failures – if any – within the Constitutional review exercise your Excellency has commenced.

6.   As we write today, your party (BDP) is effectively controlling our country unlawfully since Sir Seretse Kgama in 1966. We do not blame you personally for that status because you were not in charge then in 1966, whilst some of us were not yet born. However, that does not exonerate the current status and reality that it falls upon your party (BDP) to return our property to its owners, and your Excellency happens to be its current leader who must deal with our demand. Accordingly, this correspondence serves to kindly ask your Excellency to utilize his current powers as leader of BDP and State President, to take such steps as necessary to redress the injustices of 1966 perpetrated against Bakgatla – by returning Bakgatla Tribal Territory to its rightful owners.

7. It seems to me that we are asking something relatively simple and reasonable, because all you need do is: (a) present this demand to your BDP parliament caucus; (b) discuss with your cabinet, and (c) proceed to amend the current Botswana Constitution (application clauses) to indicate that the current constitution does not apply, and should never have applied to Bakgatla Tribal Territory (this should have been done in 1966 at the London Conference and stipulated in the Bechuanaland Independence Act passed in London), (d) declare our Bakgatla independence,(e) pass transition legislation, and (f) inform the United Nations and SADC accordingly that you have released us to our independence. This bold step will resolve a historical injustice in a short space of time with the least amount of energy. What we do with our independence moving forward is our business. We have competent leadership, intelligent resourceful people and good ideas to sort ourselves out. Be rest assured that Bakgatla shall experience a better quality of life to that we have endured under the current Botswana constitution since 1966.

8.   Whilst it may be tempting to lose the simplicity of our demand in rhetoric, decorum, political red tape, and fear of the truth & change, it remains glaringly clear to us (victims of injustice) that: In as much as Sir Seretse Kgama and his BDP of 1966 managed to take our land by passing a law (Constitution), it should be within your same powers with current BDP to pass a similar law (amendment of constitution) to restore our country. Your Excellency has sufficient numbers in parliament, and all power of government to achieve this. Your party has the power to pass pretty much any law you please, as has been the case over the past 55 years. You also happen to be a Mokgatla man, well positioned to achieve these goals of freedom for Bakgatla. Within your cabinet is Kgosi Linchwe II’s son (Hon Mmusi Kgafela) who should understand this plight of Bakgatla better than anyone else.

9.  It will be a serious misdirection to believe that the proposed constitutional review will necessarily answer our Bakgatla case. Our claim of right is not dependent upon what other Batswana elsewhere in the country say; nor can it be resolved by a Commissioner. Only your private club (BDP) can restore what you have unlawfully taken from us; and only you (BDP government) and British Government have the locus standi to receive and answer our demands. The only relevant question you need ask yourself, colleagues and interested persons now is: Show lawful cause why restoration of Bakgatla country must not happen!

10. It will be another tragic loss of opportunity if you fail to utilize your present station of destiny to fully and finally restore Bakgatla country. During our tribulations of 2010-2012, I personally advised former president to seize the moment of his presidency to uplift Bogosi (he being a Kgosi), and correct the injustices of 1966 done by his father. He failed to heed. An opportunity was lost, which he too can see on hindsight. I am suggesting to you that you should not repeat the same squandering of opportunity.

11. May it be clear that: Bakgatla will not participate in any talks for Constitutional reform in Botswana, until we have full restoration our country (Bakgatla Reserve). Otherwise, we risk falling into error of betraying our forefather’s stand, recorded in Kgosi Linchwe 1’s letters of 1894, Kgosi Linchwe ii’s letters of December 1965, and all their gains since 1870, which are (our inheritance) systematically taken from us by politicians and foreign rule disguised as a democracy. Only then, with our country in hand, shall we be in a position to meaningfully contribute to constitutional reform, and negotiate a Federal State of Botswana (in the very least of compromises), where Bakgatla retain their independence, or semi – autonomy, within the greater Botswana.

12. Your Excellency must appreciate that we Bakgatla will never give up on our demands for restoration of our country. Our stand is a matter of principle informed by history and law. It is a reality of having no choice, given the history of cruelty we and our Bogosi have suffered at the hands of your BDP government and western democracy since 1966. In the climax of it all, your BDP government has advanced as far as passing laws in 2010-2014 (Court Judgements & Executive Orders) declaring your non-recognition of Bakgatla apex leadership, and prohibiting Bakgatla bogosi from leading our people.

13. In addition, your BDP government has effectively expelled the Bakgatla monarch out of Botswana (under threat of imprisonment) and left our people leaderless to date. These actions are a clear indicator that Bakgatla (have never been accepted) under BDP rule and current Botswana constitution. We have glaring indicators (red lights) that we must have a formal separation which endorses the status quo prior to 1966 in relation to land ownership and sovereignty. Logic dictates that your BDP government must release us Bakgatla into independence, if your government despises us so much as we have all seen over time. Setswana proverbs say: Monna o nkga le di tsaagwe – Motse fa o bakwa re tla o kgaogana.

14. Therefore, your failure (if any) to heed our demand, can only delay the inevitable. It will always reflect regret towards missed opportunity, as one president after another grapples with the same demand.  Unfortunately, you will place us in the awkward position where we have to trouble your BDP government throughout your reign, the British Government, and British Royal Family in various forums over matters that we could have resolved locally as suggested herein. Unfortunately too, you will miss Bakgatla formal participation in the Constitutional reform talks. That entire exercise will become still-born from a failure of participation by a major tribe within the country. You will end up perpetuating the 1966 errors, exactly as they are recorded in the letters and other representations of 1965/66 made by those who opposed Seretse Kgama’s & BDP coup. We are already seeing sign posts from that same road.

15. The individual Mokgatla man or woman may speak for themselves, as they please. We do expect that some may stand against our course; especially those whose loyalties reside more with politics than Bakgatla heritage. But none – in their small or large numbers – has a legal mandate to speak for our private ownership of Bakgatla Tribal Territory. No number of votes can lawfully negate/discharge Real Rights to property entrenched in Statute, or our plight for self-determination. We are dealing here, purely with a factual & legal reality of the past, present and a future we desire for our people: Nothing personal or rhetoric. Your BDP government is holding onto that which does not belong to you, but to us Bakgatla. Under your charge, our people are gradually displaced by foreigners, disadvantaged in all respects whilst all kinds of evil destroys quality of life, which would otherwise not happen under our (bogosi) unimpeded leadership. All we want is (restoration of my father’s country), redress of the 1966 injustices, and a well-deserved opportunity for Bakgatla apex leadership to lead our people without undue political interference.

16. Your Excellency must concede the factual reality before us that currently, I am unable to lead, let alone live amongst my people, because of BDP political interference, well documented in my recent book – The Last Frontier. It has always been open to your government to establish real (as opposed to abstract) conditions for my safe return and living amongst my people in Mochudi. Your law officers in DPP & Attorney General have power to formally withdraw all those fake criminal charges against me in Court (if they so wish), and draft legislation for your majority BDP to pass in parliament conferring Kgosi Kgolo Kgafela II due and deserving immunity of a Kgosikgolo. It will not be the first time your government passes legislation specific to an individual (Kgafela II).

17. Likewise, your government has power to pass legislation that formally recognizes, respects and adequately provides for office of KgosiKgolo in Botswana. That kind of legislation would have relieved Batswana of the current morass created by the 2011 High Court Judgement and related Executive Orders.

18. Rather than perform these relatively simply to understand tasks in the past ten years, we have observed a shameful trend amongst your party members, including your Excellency’s behavior (we say this with respect), where individuals use my name and integrity for political campaign. The theme is – bringing Kgafela back home – without attending to the real matters of legislative intervention. Your Excellency has been recorded saying that you will not rest until Kgafela is back home. But to date, you have not spoken to me. We see you visit people all over Botswana and the world, but you have not made time to visit and talk to me directly less than 400km away. Your party’s political rhetoric using my name treats me more like a stray Poodle, available to any passerby to grab and pose for a selfie – sometimes laced with disrespect.

19. There is no doubt that your BDP government displays superficial attitudes towards my return to Botswana. That same disposition makes it delusional for anyone to believe that your BDP government will ever pass the legislation suggested above (establishment of office of KgosiKgolo & immunity) because if the contrary were true, we would have seen signs sprout in the past ten years, especially since 2018. As such, trust is impossible, and we have to live with that reality.

20. I have come to terms with my fate that: the only way I will ever see my father country, or enjoy Botswana, is when Bakgatla have recovered our independence, or there is a new government that will create a safe environment for me to walk freely in Botswana enjoying respect of a KgosiKgolo. In the meantime, we will endure such fate that we continue to suffer property losses, poverty, and so many other difficulties flowing from my inability to access my property and my people in Botswana. Indeed, we have lost a lot of money so far, from having to defend ourselves and innocent tribesmen against politically motivated criminal trials, whilst thieves took advantage of our vulnerability to crush us deeper into poverty. We have no hope for compensation from government.

21. My Botswana Identity document (Omang), passport and driver’s license have expired. It is impossible for me to renew. I cannot visit a nearest Botswana embassy for help whilst there is risk of being arrested because of outstanding criminal charges in Botswana. Effectively, my Botswana citizenship under the current legal regime has expired, and I am left with no hope of renewal. I stand banished today, as it were with my grandfather Kgosi Molefi. These are repeating cycles of history we must break, once and for all.

22. Be that as it may, please understand that we hold no grudges against your Excellency or anyone in Botswana, given the conclusions and the decisions of destiny we have taken about the future. Nothing else matters now, other than that future. To that end, I am hereby formally inviting your Excellency to make time to come here and see me in South Africa, so that we may talk about these matters, and perhaps others of national interest. We need a very clear way forward post March 2022 concerning restoration of our country, because we intend to escalate our plight. Your Excellency may usefully arrange through my brother  Hon Mmusi Kgafela and Kgosi Sekai, both of whom will liaise with Kgosi Ramona here in South Africa. Please let me know your response on or before 30th January 2022.

23. This communication is being delivered  under  KgosiKgolo Kgafela Kgafela ii Foundation covering  letter  for  the  reason that  we intend  (henceforth)  to  deal with  these Bakgatla issues through  platforms  of the Foundation foremost, supplemented  by official traditional channels.

Yours in truth Justice

Kgosi Sekai Bana Linchwe

CC: KgosiKgolo Kgafela Kgafela ii Foundation