Home » Columns » Does the Bogosi Act preserve the primacy of Bogosi? (Part II)

Does the Bogosi Act preserve the primacy of Bogosi? (Part II)

Publishing Date : 21 January, 2020

Ndulamo Anthony Morima
Eagle WATCH


Last week, we looked at sections 4, 5, 6, 13, and 15 of the Bogosi Act, Cap. 41:01(‘the Act’) which deal with the definition of the word ‘Kgosi’, recognition of a Kgosi, designation of a Kgosi, removal of a Kgosi, and withdrawal of recognition of a Kgosi respectively.



We should have also discussed section 14. Section 14(1) provides that ‘any person who is dissatisfied with the decision of the Minister deposing or suspending him or her as Kgosi may appeal in writing to the President against the decision within two months of the giving of the decision.’ Section 14(2) provides that ‘an appeal under this section shall not operate as a stay of execution of any order made by the Minister and such order shall be of full force and effect until such time as it is otherwise disposed of on the appeal.’


Though, in our view, it would be in the public interest that an appeal to the President operates as a stay of execution, we do not take serious issue with section 14 since an affected Kgosi can approach the courts for any appropriate relief, including a stay of execution. Last week, we concluded that sections 4, 5, 6, 13, and 15 do not preserve the primacy of Bogosi since they not only diminish Dikgosi’s powers, but also put Bogosi at the risk of politicisation, putting tribal and national harmony at risk.


We recommended that to remedy this defect, the Constitution and/or or the Bogosi Act, preferably the former, needed to be amended to provide for a Bogosi Service Commission (BSC), with powers similar to the Judicial Service Commission (JSC).  We suggested that the BSC, whose membership should be largely people knowledgeable on Bogosi and customary or cultural matters, could be vested with the powers to recommend the recognition, discipline (through a Disciplinary Tribunal), suspension, removal or de-recognition of Dikgosi.


In our view, the statutory provisions in this regard could be such that once the BSC makes a certain recommendation, the Minister is compelled to act in accordance with such recommendation in the same manner that the state President is so obliged in the case of judges in terms of section 96(2) of the Constitution of Botswana which provides that “judges of the High Court shall be appointed by the President, acting in accordance with the advice of the Judicial Service Commission”.


Such provisions could, in our view, go a long way towards entrenching Dikgosi’s security of tenure, a cardinal requirement for their independence. We argued that Dikgosi’s independence is cardinal not only because Dikgosi have a judicial function, but also because they should be apolitical since their subjects are of different political persuasions. This week, we consider sections 17(b), 20 and 27 of the Act. Section 17(b) provides that ‘It shall be the function of every Kgosi to carry out any lawful instructions given to him or her by the Minister.’


Some have taken issue with this section, arguing that the Minister may, in terms of this section, give a Kgosi an instruction which, though not unlawful, is inimical to the interests of his or her tribe or Bogosi in general, or is even inconsistent with the provisions of the Act. They argue that considering that the Minister is a politician who belongs to a political party, he or she may use this section to give instructions whose object is to further his or her political party’s interests.


Section 20(1) provides that ‘the Minister may issue directions in writing to any Kgosi, not inconsistent with the provisions of this Act, for the better carrying out of the provisions of this Act.’ Misgivings about this section have been given for the same reasons as discussed in relation to section 17(b) above. It, however, has to be noted that the Minister cannot give directions which are inconsistent with the provisions of the Act.


In our view, this limitation on the Minister’s powers, just like the limitation at section 17(b), is sufficient to safe guard the rights of Dikgosi, especially because the court’s jurisdiction to adjudicate on disputes thereof is not ousted by the Act.  Section 20 (2) provides that ‘any Kgosi who without good cause fails to comply with any directions given to him or her by the Minister shall be liable to be reprimanded, suspended, stoppage of increment of salary or deposed in accordance with the provisions of section 13.


As discussed last week, most, if not all, Dikgosi and many commentators are opposed to the Minister being bestowed with the power to discipline Dikgosi, let alone remove a Kgosi from office. Just to refresh our minds, some Dikgosi are on record arguing that since their positions are attained by birth, and they are responsible for a whole tribe, and politicians are, in fact, their subjects, they should rank above politicians.


In their view, it is, therefore, anomalous that a Minister, who is a politician, should have the power to recognise them, supervise them and withdraw their recognition. As stated in last week’s article, Kgosi Kebinatshwene Mosielele of Manyana is on record saying “we have always maintained our stance that de-recognition of a Kgosi by the Minister should be removed. As a Kgosi you are born a leader so there is no how someone, a politician can have powers to de-recognise you.”


Many Dikgosi argue that the politicians’ power to recognise, supervise and de-recognise them not only makes them lose the respect of their subjects, but also has the possibility of being abused and used to further political objectives, something which would have dire consequences for tribal and national harmony. But some have argued that section 20(2) is consistent with the Constitution of Botswana since it limits the Minister’s power, ensuring that he or does not abuse it by, for instance, using the power to meet an irrational purpose.


This, they say, is because, in terms of this section, a Kgosi can only be disciplined or removed if he or she, without good cause, fails to comply with any directions given to him or her by the Minister.  They argue that provided that the affected Kgosi demonstrates that he or she had good cause for failing to comply with any directions given to him or her by the Minister, discipline or removal cannot be visited upon him, and, if it has, would be set aside by a court of law.


I agree. My view in this regard is fortified by the fact that the court’s jurisdiction to adjudicate on disputes thereof is not ousted by the Act. Dikgosi can, therefore, rely on our courts, which are independent, to vindicate their rights. We now go to section 27. Section 27(1) provides that ‘notwithstanding any provision of any enactment to the contrary, no court shall have jurisdiction to hear and determine any cause or matter affecting Bogosi.’


If one reads section 27(1) in isolation or before reading section 27 (2) they may be alarmed thinking that our courts have no jurisdiction to adjudicate on any matter or dispute related to Bogosi. But that is not so. Section 27 (2) provides that ‘for the purposes of this section "cause or matter affecting Bogosi" means any cause, matter, question or dispute relating to any of the following-(a) the designation of any person as a Kgosi or the claim of any person to be designated or (b) the recognition of, appointment to be, or suspension of a person from being a Kgosi.’


In terms of section 27(2), the courts’ jurisdiction is only ousted in relation to any cause, matter, question or dispute relating to the designation of any person as a Kgosi or the claim of any person to be so designated or the recognition of, appointment to be, or suspension of a person from being a Kgosi. However, the courts have jurisdiction over all other matters, including those related to the reprimand, stoppage of increment of salary or deposing or de-recognition or removal of a Kgosi in accordance with the provisions of section 13 of the Act.


Some people argue that the ouster of the courts’ jurisdiction with respect to the designation of any person as a Kgosi or the claim of any person to be so designated as well as the recognition of, appointment to be, or suspension of a person from being a Kgosi is an unjustifiable limitation of one’s right to access to the law. I agree. In my view, there is no reason, even the often-cited public interest, national security or public order considerations, for someone who believes he or she is entitled to be designated as Kgosi to be denied the right to approach the courts to assert such right.


The same applies to someone who is aggrieved by the Minister’s decision not to recognise him or her as Kgosi; not to appoint him or her as Kgosi, or to suspend him or her from being a Kgosi.  Lastly, we look at section 28. It provides that the Minister may make regulations for any matter which is required to be prescribed or for the better carrying out of the provisions of this Act and without derogating from the generality of the foregoing, such regulations may prescribe-  (a) the general conditions of service of;  (b) the procedure for taking disciplinary actions against; and  (c) the punishment which may be awarded for breaches of discipline by, persons appointed under this Act.


In our view, whilst there is nothing fundamentally wrong with this section, there is need for a provision that the Minister shall make such regulations after consultation with Ntlo ya Dikgosi. Certainly, it is Dikgosi themselves who would know better what is best for them.

*Ndulamo Anthony Morima (LLM, LLB) is the Managing Partner of Morima Attorneys

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