The majority judgement of Justices Omphemetse Motumise and Itumeleng Segopolo in the election petitions launched as a result of elections in the Mmashoro and Kaudwane/Sorilatholo wards has somewhat given the Independent Electoral Commission (IEC) a carte blanche to run elections in this country. Further to this, the IEC will be buoyed by Section 140 of the Electoral Act which reads in part that “No election shall be set aside by the High Court by reason of any mistake or non-compliance….if it appears to the Court that the election was conducted in accordance with the principles laid down….and that such mistakes or non-compliance did not affect the result of the election.” Effectively, Section 140 through the majority judgements says to the IEC: you are allowed to commit mistakes such as non-compliance with the Electoral Act in whatever form or shape but kindly ensure that such do not affect the result of the election because if you do so, no court will fault you. Because the issue of ballot papers is in dispute in the two council petitions, I will deal with them interchangeably in this conversation.
Justices Motumise and Segopolo appear to be grounding their majority judgement on Section 140 of the Electoral Act as alluded to above. But could the Judges reasonably conclude that the elections at the two council wards were conducted in accordance with the contemplated principles of the Electoral Act? I beg to differ. For example, if the returning officer was called to give evidence, he/she would have told the court if they had complied with Section 71 (4) of the Electoral Act under Method of Counting which provides that “If any candidate or counting agent objects to a decision made by the returning officer….the returning officer shall endorse the words ‘objected to’ on the ballot paper.” This point was raised by the dissenting judgement of Justice Ketlogetswe in which I suppose these words were not endorsed in the disputed ballot papers. As it is, the matter of how spoiled ballot papers was handled from the IEC perspective remains a matter of speculation because like I have already said, the IEC has failed to take the court in its confidence by not calling the returning officers. The majority Judges seem comfortable with this state of affairs presumably under the reasoning that the issue is too small to have affected the result of the election.
The issue of the status of ballot papers did not end as articulated above. In elections generally speaking, there are those ballot papers referred to as spoiled. The Free Dictionary defines a spoiled ballot paper as the one that is ‘invalid because the person voting has not marked it properly, whether inadvertently or deliberately.’ If this definition is accepted in the context of the ballot paper issue in these petitions, it is at variance with the majority judgement. The majority judgement contents that it doesn’t matter how the voter voted. What is important according to it, is that the voter would have indicated his/her preferred party by placing any mark wherever and however on the ballot paper as long as there can be a link between the mark and the party. Through this judgement I argue, a spoiled ballot paper particularly in this regard will no longer be in the vocabulary of elections in Botswana because any voter can now decide how he/she decides to vote irrespective of the IEC pronouncements or directions on how and where voters should place the X mark on the ballot paper. It cannot be and it shouldn’t be. A spoiled ballot paper I suppose and in the context of the majority judgements, will only be the one that has two markings on two political party symbols.
The IEC during its campaigns to teach voters about putting an X mark at the allocated column on the ballot paper, seems not to worry the two Judges. A properly filled ballot paper and an un-properly filled one was demonstrated through IEC campaign bill boards and other fora. It is accepted that some of the voters may have not marked their ballot papers correctly as would be desirable for one reason or the other. But for the Judges to suggest that any X mark placed elsewhere on the ballot paper or any other mark so placed for that matter shows the intention of the voter borders with the greatest of respect to the learned Judges, on conjecture of some sort. Lawyers including Judges always tell us that ignorance of the law is no excuse. For the two Judges to turn around this time around to insinuate that questionable ballot papers fit enough to be declared spoiled are valid and that ignorance of the law in this regard is an excuse is very unfortunate and disturbing.
In the other election petition (Kaudwane/Sorilatholo council ward) concluded by the High Court this past Thursday, Justices Motumise and Segopolo continued to give the IEC a carte blanche to run elections in this country. At the heart of this election petition is the fact that the IEC caused the ballot paper in this ward to include a political party (Alliance for Progressives) not duly nominated to partake in such election. And the predictable excuse from the two Judges is that such a defective ballot paper did not affect the result. The IEC has played double standards in so far as defective ballot papers are concerned. During the general elections, it was discovered in the Mahalapye East constituency that there was a defective council candidate ballot paper whereupon the IEC itself decided and correctly so in my view, to call off the elections for council candidates. On the same day in the Kaudwane/Sorilatholo council candidate election process, a defective ballot paper was discovered and brought to the attention of the IEC. Unlike in Mahalapye East, the IEC decided to continue with the election. If such a glaring illegality can be entertained by the court on the basis that it did not affect the result of an election, it should reason that no other illegality regarding a defective ballot paper will be outlawed in Botswana elections.
In conclusion, I hold the view that the majority judgements in the two council election petitions by Justice Omphemetse Motumise and Justice Itumeleng Segopolo have given the IEC a blank cheque to run elections in Botswana. Like I have stated above, the IEC is permitted through these judgements to commit a mistake in the form of non-compliance with the provisions of the Electoral Act only if such mistake or non-compliance do not affect the result of the election. Through these judgement as well, it is reasonable to conclude that voters now and henceforth, are permitted to place any mark on the ballot paper anyhow as long as it can, by inference, be concluded which party the voter intended to vote for. The IEC is further permitted to conduct sham elections by printing defective ballot papers with the full knowledge that any election petition arising therefrom, will be dismissed with costs by the High Court. I am waiting to see what type of voter education the IEC will conduct towards the 2024 general elections. Is it going to say: put your X mark on the designated slot on the ballot paper as it has done so in the past or, put whatever mark on the party symbols in view of the majority judgement ruling? I will also be waiting to see how it will describe a spoilt ballot paper to the voters.
As a parting shot, I want to believe that Botswana elections will be premised on the end result in that election results will be the most preferred method of determining election petitions than the core imperatives of integrity, credibility and legitimacy of the elections themselves. Whatever processes and principles contemplated in the Electoral Act as prerequisites to deliver a free, fair and credible elections, such will just be an administrative routine akin to an oath of office that subsequently becomes meaningless. Botswana general elections and on the face of the majority judgements, are still poised to be a sham of Biblical proportions. I am prepared to be persuaded otherwise as always. Judge for Yourself!