- DPP says it may be wrong to pounce on a man coming to bury his mother
- Pardon expected to open discussions between Kgafela and gov’t
The Director of Public Prosecutions (DPP), Stephen Tiroyakgosi, says while the warrant for the arrest on Kgosi Kgafela Kgafela II of BaKgatla remains enforceable, the state may consider a conditional pardon for the monarch to return to bury his mother, BaKgatla queen mother, Kathleen Nono Kgafela,
who passed away on Sunday morning.
Ordinarily the police should arrest Kgafela immediately upon his arrival in the country to enforce a more than a decade-old warrant of arrest issued by the Village Magistrates Court subsequent to his non-appearance in court over criminal charges for flogging his subjects.
But the DPP says they may not arrest Kgafela on compassionate grounds. “The warrant remains enforceable but we are talking here about a man and leader who has lost his mother and in need of paying his last respects,” Tiroyakgosi said in an interview. “So we may not enforce the warrant of arrest, given these circumstances.”
The state previously told Parliament in relation to the matter: “A court order once issued remains valid and enforceable unless it is rescinded by the court that issued it, in this case being Village Magistrate Court. It may also be rescinded by a higher court, being the High Court or the Court of Appeal.”
Lawyers say if it is no longer interested in pursuing Kgafela as a fugitive, the DPP should issue a nolle prosequi (we shall no longer prosecute) to enable his return to Botswana. But it is not yet known whether Kgosi Kgafela will violate his own vow not to ever set his foot in Botswana until the constitution has been changed.
Meanwhile, President Mokgweetsi Masisi promised BaKgatla in 2019 that he would not rest until Kgosi Kgafela was back home. Observers say the departure of the Queen Mother of BaKgatla, who is affectionately known as Mma Seingwaeng, could present an opportunity for discussions. Yet there are some in the legal profession who would insist that the law should never be applied selectively because that would set a bad precedence.
Mma Seingwaeng, who died at the age of 79, was the wife of Kgosi Linchwe II who died in 2007. Both are known and credited for their roles in nation building.
Their son, Kgosi Kgafela II, left Botswana to live in South Africa because he took the view that he was being politically persecuted and that Botswana’s criminal justice process was being used to push that agenda.