I'm not a fugitive – Khama
Innocent Selatlhwa | Tuesday May 14, 2024 09:30
This comes after Ian Khama was declared a fugitive from justice by Justice Barnabas Nyamadzabo in Seretse Khama Ian Khama and Another v Director of Public Prosecutions and Another – Case No. MAHGB-OOO673-22.
Ian Khama has dragged Autlwetse before court demanding the installation of his chosen regent, Seretse Peter Khama. Instead he wants his uncle, Serogola Seretse, removed from the position he assumed in 2022 following the expulsion of Sediegeng Kgamane.
Ian Khama, through his attorneys Abel Lawyers, has filed a case before Maun High Court’s Justice Bugalo Maripe with Ian Khama and Seretse Peter Khama as the first and second applicants, while the minister and the Attorney General are the first and second respondents. In their opposing papers, through their attorneys, Bogopa, Manewe, Tobedza & Co, the minister, and the Attorney General have raised points of law, amongst them they argue that Ian doesn't have locus standi as he was, on February 12, 2024, declared a fugitive from justice by the court per judgment by Justice Barnabas Nyamadzabo.
“The above finding by the court is valid and has never been set aside. As a fugitive from justice, Khama is not entitled to invoke the processes of the courts in Botswana. Khama is, therefore, approaching this Honourable Court with unclean hands and the court cannot be seen to be conniving with and/or condoning the conduct of the first applicant (Khama). The first applicant is therefore not properly suited to bring these proceedings. He lacks locus standi to institute this application before this court or any other court of law in Botswana,” they state. In their replying papers, Ian Khama’s attorneys refute that he isn't a fugitive from justice. They argue that the fugitive from justice principle enunciated in Mulligan v Mulligan 1925 WLD 164, on which Justice Nyamadzabo relies for his finding, does not apply in this case.
They argue that the Khamas, Ian and Peter, have brought this application in their Bogosi Act capacities as the recognised Kgosi and the designated Motshwarelela Bogosi respectively, and not in their personal capacities. As per the draft order filed of record, Ian is not seeking to assert his personal rights in this matter.
None of the orders sought endures to his benefit. As is relevant to this matter, Section 7 of the Bogosi Act, 2008, under which this application was brought, purveys two rights and two duties: Khama's duty to designate a Motshwarelela Bogosi; Autlwetse's duty to appoint the designated Motshwarelela Bogosi; Peter's personal right to be appointed as Motshwarelela Bogosi of the Bagammangwato Tribe following his designation as such by Khama; and The public right of members of the Bagammangwato Tribe to the appointment of their designated Motshwarelela Bogosi so that he can act on behalf of and carry out the functions of a Kgosi as per the Act and further represent them in Ntlo Ya Dikgosi. They state Justice Nyamadzabo's decision in the said case is no binding authority to the effect that the first applicant has been declared a fugitive from justice.
“The First Applicant was not declared a fugitive from justice by His Lordship Justice Nyamadzabo. As per the order on pages 32 and 33 of the judgment, no such declaration was made by His Lordship. It is settled law that a decision of one high court justice is not binding on the other high court justice. That this is trite is accepted by Justice Nyamadzabo in the same case paragraph 19 of his judgment. Therefore, the decision of His Lordship Justice Nyamadzabo in the aforesaid case isn't binding on this honourable court. “The case is distinguishable on the fact. In that case, the first applicant sought to assert his own personal rights. But, as discussed above he isn't seeking to assert his personal rights. Justice Nyamadzabo's finding in the case that the first applicant is a fugitive from justice is obiter dictum.
The respondents in the said case had raised three points in limine, the fugitive from justice point being the third. By the time that finding was made, the learned justice had already decided to dismiss the application on the basis of the first and second points limine,” they state. They further argue that even if Ian were to be found to be a fugitive from justice by the court, it doesn't follow that the doors of the court should be closed to him. “Legal developments have moved away from the extreme position pronounced in the 1925 case of Mulligan v. Mulligan. Amongst others, the contemporary principles when dealing with questions of fugitive from justice, are that the right of a party to have access to the courts is a strongly guarded constitutional right which should not be easily deviated from. The Mulligan principle must be read against the background of the Constitution, particularly Section 10(9) of the Constitution of Botswana. Each case must be dealt with on its own merits,” they stated. They further argue that there are two applicants in this matter. “The first applicant is not seeking any order for his personal benefit. It would be prejudicial and not amount to a fair hearing if the second applicant was deprived of asserting his Section 7 of the Bogosi Act right on the basis that the first applicant. Similarly, it would be a denial of justice to the Bagammangwato tribe, who stands to benefit from the appointment of the second applicant,” they state.