The Court of Appeal (CoA) this week questioned Botswana Defence Force (BDF) Commander’s failure to forgive and not dismiss a remorseful military couple that had engaged in a prohibited love affair.
The case in which a female Lieutenant Thabang Thapisang and her boyfriend, Private Kozondu Uariua were reinstated by the High Court following their dismissal from service, returned to court on Thursday with BDF Commander, Lieutenant General Placid Segokgo, seeking to overturn an earlier decision by Justice Dr Zein Kebonang to reinstate the duo.
According to Lt. Gen Segokgo, the High Court had interpreted section 65 to mean that the charge could not be dealt with summarily, which he believes is not the correct state of the law. “It is our contention that, where the respondent (BDF couple) is charged and the Commander under section 74 (1) determines that the matter is to be dealt with under (74 (2) (b) and after such trial, the accused is found guilty under section 65, then the Court Marshal or High Court shall be in a position to award imprisonment for two years or any less punishment provided by this act,” Segokgo submitted through his lawyers.
The CoA Judges, Sigh Walia and Alistair Abernethy, however quizzed why the BDF top boss did not use his discretion to forgive the lovers.
The court is of the view that since it is on record that the two did not know that their love affair was ‘illegal’ and had ended the relationship after being advised otherwise, the BDF Commander should have made his decision relying on the circumstances instead of the conviction.
The court said that it is on record that the officers apologized and called off their relationship then. “This is a matter the Commander should have considered. He had to take into consideration all of the circumstances. She (Thapisang) did not know, when they were informed about it and they stopped the relationship and apologized,” said Abernethy.
For their part, through their lawyer, Othusitse Mbeha, the couple still maintain that their dismissal was unfair.
“The 1st appellant’s (BDF Commander) decision was unreasonable and speculative absent of any tangible evidence about the effect of the respondents (BDF couple) love relationship on the army. In addition the respondent’s love affair is not prohibited by the fraternization sexual harassment policy to the extent that they did not work under the same unit, supervised one another and accordingly there was no proof of compromising and undermining the chain of command,” Mbeha argued.
The respondents’ lawyers also believe that the Commander failed to give reasons why he deemed the duo unfit to continue with work.
The two were accused of engaging in an inappropriate relationship sometime in 2012 and each charged on August 22, 2014 with a single count of conducting themselves in a manner that was prejudicial of good order and military discipline contrary to the BDF Act.
Subsequent to that, they were both dismissed from the military on October 28, 2014 through a letter dated October 27, 2014.
The case continues before the CoA.