Behind persuasive legal arguments by attorneys Nelson Ramaotwana and Onalethata Kambai, which on Tuesday won Kgosi Bana Sekai Linchwe freedom, is an untold story of how the Botswana Democratic Party-led Government singled out the Bakgatla royal for selective prosecution calculated to punish him for spurning its advances. Even after Gaborone Regional Magistrate, Mokwadi Gabanagae, discharged and acquitted him Sekai confessed that although he is a free man he lives in fear that the state machinery could concoct other charges or device strategies to ensnare him. "Mme Modimo o teng (God will protect me)," says a man who has evidently resigned himself to fate. The state case crumbled when Gabanagae found that contrary to constitutional provisions they cited, the DPP prosecutorial powers are not unfettered. Sekai and other 35 offenders were charged with Assault Occasioning Actual Bodily Harm contrary to section 247 of the Penal Code of Botswana. In the intervening period there was separation of trials and reconciliation for all offenders. The process of reconciliation commenced on the 16th August 2012 and continued up to 13th March 2014. The state consented to reconciliation to all offences without exception and never raised any issue of offences under Section 247 being aggravated, or the issue of consent in any of the cases until Sekai's matter was called for hearing.
Kambai and Ramaotwana submitted that by consenting to reconciliation to take place on the same offence for all other similarly situated offenders and renege on Sekai amounted to arbitrary, oppressive and unreasonable use of power or abuse of authority. They argued that DPP cannot raise objection to reconciliation on the basis of aggravation as doing so is discriminatory to Sekai since all other similarly situated offenders were reconciled with complainants on the same charges. Bakgatla-ba-Kgafela deputy chief, Kgosi Bana Sekai Linchwe, heaved a sigh of relieve on Tuesday when court set him free by dismissing criminal proceedings pursued by government against him since 2012. Jubilation was written all over the faces of hundreds of Bakgatla tribesmen who have been following the court case religiously, as they celebrated their victory. "I am happy with the court ruling. As has been stated repeatedly before, it was weird that I was singled out for prosecution when everybody else was forgiven. Now I can go on with my life without this prosecution hanging over my head," said Sekai, in the company of his wife in court.
Sekai was facing several counts on the charge of "assault occasioning bodily harm", which could have seen him languish in jail for no less than five years if convicted. He successfully interdicted government from continuing with trial after efforts by Bakgatla leadership to broker peace were spurned by the Directorate of Public Prosecutions (DPP). Pushing for a conviction against Sekai with great determination to throw him behind bars, DPP had assigned their most senior legal gurus being Assistant Director Susan Mangori and Deputy Director Wesson Manchwe. At some point in the quest to nail Sekai, DPP forced a lawyer he had appointed, Kgosietsile Ngakaagae, to recuse himself complaining that he was previously involved in the matter while employed as state prosecutor. In an application motivating the discharge and acquittal of Sekai, the lawyers demanded a reasonable legal justification why their client was treated differently from other accused persons after DPP withdrew cases against 32 other Bakgatla of Madibelankwe regiment facing the same charges. All the cases emanated from the same incidents. To demonstrate that the DPP was on a witch hunt, the lawyers produced a letter from a victim of the alleged assault written to court as far back as 2014 indicating that he has reconciled with Kgosi Sekai and was not interested in pursuing the matter further. DPP still refused to stay the prosecution, claiming that only the magistrate presiding over the matter has powers to do so.
There has been growing speculation in Kgatleng that the DPP's pursuit of Sekai on criminal charges was a political strategy to have him convicted and incarcerated as punishment for spurning efforts to recruit him to the ruling Botswana Democratic Party (BDP) as a compromise for dropping the charges. The BDP suffered humiliating defeats in Kgatleng against the opposition Umbrella for Democratic Change (UDC) in the 2014 General elections. Those making the recruitment allegations point to the recent defection by one of the 32 Bakgatla tribesmen pardoned by the state on assault charges, Mmusi Kgafela, the younger brother to paramount chief Kgosi Kgafela II. Mmusi was welcomed to the BDP by Vice President Mokgweetsi Masisi at a rally in Rasesa amid wild celebrations. Before then, Mmusi had been known to be a Botswana National Front (BNF) member having contested elections for the Student Representative Council (SRC) under the party banner (MASS-BNF) while studying for his Law Degree at the University of Botswana. Their father, the late Kgosi Linchwe, was one of the founders of the BNF. Only Bakgatla paramount chief Kgosi Kgafela II still faces prosecution for several counts on charges of assault for administering corporal punishment on some residents of Kgatleng district without any trial. A warrant of arrest has long been issued against him for failing to appear in court when summoned to answer the assault charges. Kgafela II lives in exile in Moruleng, South Africa.