Case law suggests prospects of success
Red flags have always been there to indicate the upcoming Botswana National Front (BNF) slated for mid-July 2022 was headed for the courts. Dr Molatlhegi’s lobby group has had a fair amount of neglect from the BNF in terms of complaints with regards to the preparations and management of the Women and the Youth League congresses. Given the neglect, Dr Molatlhegi’s lobby group had no other option but to approach court for redress. It appears they did all that is humanly possible to ventilate their issues from within but all seemingly with futility. It stands to reason therefore that had the said complaints been meaningfully addressed by the BNF, the current urgent court case would not have arisen. While court documents do not cite Advocate Duma Boko as the Respondent but the BNF, I deliberately do so on the basis that he leads the lobby group that seeks to have him re-elected the BNF President at the elective congress Dr Molatlhegi seeks to interdict until his lobby group’s prayers are granted. We cannot run away from the fact that the two are running for the ultimate position and therefore the main actors in BNF body politic. What could be the source of Dr Molatlhegi’s lobby group concerns?
To a large extent, it should be with respect to firstly how he was viewed by some in the BNF when he raised his hand in February 2022 to challenge Adv Boko for the party’s top job. Secondly, it has to do with how he described the state of the party by saying it has been reduced to a pale shadow of itself. Only denialists will have qualms with the description. The BNF secretariat and one of its student structures heavily criticised him to the point of suggesting he is an old BDP mole. This would be the beginning of an acrimonious relationship between him and those supporting Adv Boko.
As a consequent it would appear, anything and everything was put in place to frustrate Dr Molatlhegi and probably to force him to withdraw from the contest as was the case with Rev Dibeela. It has been evident since Dr Molatlhegi came into the picture that the party office is aggressively propping up Adv Boko at the expense of his challenger. The party logo for example is exclusive to the incumbent yet the two competitors are bona fide members of the BNF who in the context of the election to the top post, they should be afforded the same platform and support. It should be fair to say the BNF presidential process is very much premised on what obtains in the African National Congress (ANC) politics where terms like gatekeeping and rented delegates have become synonymous with campaigning for political office at every level of the party. The end result of these two terms is the creation of volatile politics of inclusion and exclusion.
Politics of inclusion will be where the incumbent’s supporters run their campaigns in the form of the BDP’s Camp Dubai where patronage of whatever nature is in the offing in terms of abundant resources while politics of exclusion is where the challengers of the incumbents are frustrated at every step of the way primarily because of the advantage of incumbency and all that comes with it. The same could conclusively be said to be the case at the BNF. The biggest problem in the gatekeeping/rented delegates culture is manipulating membership processes where almost all delegates to a congress are on the side of incumbents.
The Dr Molatlhegi lobby group court case has a semblance of how the ANC various Provincial Congresses (PCs) with particular reference to the one held by the Free State province in 2017 just before the party’s national congress in the same year have been interdicted by South Africa’s High Court. About 14 branch general meetings were found to have been unlawfully conducted with the same barred from attending the main party congress. PCs are equivalent to our regional congresses from where delegates to the national congresses are elected. Reliefs sought by the appellants and granted by the court were for the court to declare various branch meetings be deemed ‘irregular, unlawful, unconstitutional and/or in breach of the ANC Constitution…that the Provincial Conference of ANC Free State scheduled for 1 to 3 December 2017, will be a nullity and is not held until the aforesaid meetings have been held in a lawful manner and in accordance with the Constitution of the ANC’.
In this case, Justice Daniel Dlodlo said ‘The question remains, therefore, whether the delegates to the elective PC had been properly accredited and audited as required in terms of the constitution of the ANC and its membership audit guidelines….the answer is a resounding No…It is declared…the said provincial conference, its decisions/resolutions and/or outcome are unlawful and unconstitutional’. This decision would later be confirmed by the Supreme Court of Appeal. It is reasonable to suggest Dr Molatlhegi finds himself in a similar position where the ongoing BNF regional congresses are conducted the same as were the 14 referred to in the Free State. What reliefs do the Dr Molatlhegi’s lobby group seek from Judge Komboni?
Pretty much like the appellants in the Free State, Dr Molatlhegi’s lobby group seeks as follows: To ‘ensure….through the Central Committee of the BNF that the renewal mandate of such leaders structuring are obtained ….Appoints a Joint Credentials Committee to ensure a free and fair election….Appointment of an independent and impartial Electoral Body (‘EB’) as an interim measure to lead charge in the running of a pursuant congress with powers, inter alia to register delegates….Publish a voters roll which shall be accessible to all members of the BNF…Through the Central Committee, appoint a Crisis Resolution Committee for the internal resolution of new members be allowed to allow new members membership and renewal of existing membership leading up to the national congress and that no such registration shall be interrupted….That the Respondent, the Botswana National Front, is interdicted with immediate effect, from undertaking preparations for and convening a national congress to be held between 16th to 19th July, 2022…pending the resolution of matters as stated in Part B…’ On the basis of the case law as referred herein particularly with almost similar set of circumstances, it should give Dr Molatlhegi’s lobby group a fair amount of hope. The main stumbling block will be to pass the urgency part of the application. This will however be dependent on what counter arguments the BNF brings to the court room.
There can only be one plausible reason why the BNF is tone deaf to these complaints: it is deliberately suffocating the prerequisites of inner party democracy whose one intention amongst others is to create conducive platforms and environment for events leading to a credible elective congress because it falsely believes only Adv Boko can lead it. Its biggest target in the prevailing circumstances is propelling him through the BNF elective congress to the high seat of the Umbrella for Democratic Change (UDC) so that he becomes its presidential candidate in the 2024 general election. In the process therefore, everything and anything will be done to ensure the target is not missed come rain or sunshine. Nothing wrong with this for as long as competitors are not shut out and more importantly, all processes to achieve the target are beyond reproach. The BNF’s Central Committee is spoiled for choice in so far as legal minds are concerned. There is Adv Boko himself and Attorney Nelson Ramaotwana. Are they saying they cannot see the injustice meted on Dr Molatlhegi’s lobby group in terms of ensuring the playing field is even for the congress to be held in a conducive environment? Is it not fair to suggest the two legal scholars are turning injustice into justice because it perfectly serves their political ambitions? That should explain why Dr Molatlhegi’s lobby group complaints on its own version, have not been attended to in order to create an even playing field for everyone aspiring to assume a leadership role to do so.
Ordinarily, any political party worth its salt would have ensured the reliefs sought by Dr Molatlhegi’s lobby group do not even reach the court room since they are mandatory for any legitimate and credible elective congress. It will be remembered that one of the grounds of the UDC 2019 general election petitions were with respect to the voters roll which it said was doctored to deliver an outcome favourable to the BDP. Further owing to the doctored voters roll the UDC was going to argue, was its position that the registration of voters roll process was mired in countless controversies. It went further to say a People’s Court would be convened to demonstrate such doctored votes rolls. For the BNF to be accused by some of its own of the very complaint it laid effectively at the BDP’s doorstep is jaw dropping if I were to put it mildly. In as much as the UDC was resolute the BDP rigged the 2019 general election through doctored voter registration and voters roll amongst others, why should Dr Molatlhegi’s lobby group not pass the same judgement on the BNF given the circumstances are almost the same? It cannot be overstated that the registration and compiling of a voters roll is a deciding factor in any electoral process because the registered decide who stands and who falls.
All the above considered, I argue very strongly on a point of principle that Dr Molatlhegi had no option but to take Adv Boko to court given his reservations and misgivings about the upcoming BNF elective congress. I argue very strongly as well that should the congress go ahead under the current set of circumstances where the challenger is demonstrably isolated/ignored by the BNF, it will be an egregious mockery of participatory democracy. As a final arbiter of disputes, the High Court will determine whether the congress should proceed when no demonstrable processes and procedures are available for all and sundry to appreciate. The BNF is yet to answer why it is not walking the talk when it accuses the BDP of vote rigging while on the version of some of its members, is actively promoting same. Talk about hypocrisy of unimaginable proportions. BNF cannot be allowed to practise convenient participatory democracy in all its manifestations when it suits Adv Boko and complain when its suits the BDP. Participatory democracy in paticular and democracy in general must be a one-size-fits-all affair. I am prepared to be persuaded otherwise as always. Judge for Yourself!
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