At this point last year, the big political story was on one hand between President Mokgweetsi Masisi and his predecessor Lt Gen Ian Khama following their well-documented fallout while on the other, it was between the President and Dr Pelonomi Venson Moitoi following the latter’s pronouncement that she was intending to challenge the former for the Botswana Democratic Party (BDP) presidential position. Consequent to Dr Venson-Moitoi’s intention, she was swiftly removed from cabinet with her political relationship with the President taking a nose dive. 2019 is not short of political drama of its own as evidenced by the escalation of the stand-off between the President and his predecessor taken perhaps to another level by the founding of the Botswana Patriotic Front (BPF) which arguably, is the platform through which and from which political jabs would be thrown at the President. The other big story, and while not entirely political but could be argued to be cut from a political cloth of some sort, is the ‘Butterfly’ story. The sheer incompetency of State institutions involved in this and other similar matters was laid bare for one to make his/her conclusions. I nearly forgot the presidential debate just before the election day which debate it has been argued by some, was the last straw that broke the Umbrella for Democratic Change (UDC) back in so far as its chances of winning the election is concerned.
But the biggest political story of 2019 has to do with the 23 October general election and its aftermath where the contest was principally between the BDP and the UDC where the former had the last and the longest laugh. This election and its aftermath, with particular reference to the Electoral Act as it is dissected in the High Court by those competent to do so, is therefore the subject of this conversation. Before the presidential debate, it was a view generally proffered by most of the local and external political analysts that the election was too close to call with a hung parliament suggested. The UDC mounted a formidable and well-resourced campaign trail probably never seen in Botswana’s political history further fuelling the argument that the UDC was on the cusp of dethroning its nemesis the BDP or at the very least, forcing a hung parliament. But as the saying goes, the rest is history.
The results of the election are currently disputed by the UDC at the High Court through a number of constituency petitions whose aim is to annul the results in those constituencies. May be realising that it could have an insurmountable task of defending the substantive issues raised in those petitions, the BDP has taken a spirited fight to the UDC by raising technical issues otherwise referred to as points in limine in the legal fraternity. The BDP is arguing and praying as it is its legal right to do so, that the UDC petitions have failed to meet and comply with, in the main, the prerequisites of the Electoral Act and other instruments in one respect or the other. Given that the petitions are presided over by three sets of judges in the three High Court divisions, it will be interesting to see whether these divisions will deliver the same judgements for or against either party given that the issues raised thereat are almost the same if not entirely. Or, whether the UDC will be successful in one or so constituencies such that a full trial in the successful petitions ensues. Only time will tell but from where I stand, it looks like the UDC will be obliterated given previous decisions in election petitions. Advocate Jonathan Vetten for the UDC, I feel, was thrown late at the deep end when the body was already gasping for the last breath. While he put up a good fight which in other jurisdictions may have salvaged something, I am afraid the odds were seriously stacked against him.
Prospects of winning electoral petitions have over the years proved to be the petitioners’ Achilles heel given the strict legal requirements to do so. Petitioners have time and again failed to reverse election results not that they did not have, in some instances, strong evidentiary proof that corrupt or irregular practises may have occurred, but that basic procedural imperatives were ignored wittingly or unwittingly. Many High Court and Court of Appeal (COA) decisions have pronounced in very clear terms that an election petition cannot skirt around the Electoral Act in whatever form or shape. It comes out very clear in BDP points in limine as ably articulated by its lawyers that the UDC has failed to avoid the trap so many previous petitions have become victims to. And this is if the judges agree with them because legal matters have at times produced unexpected outcomes. Courts have pronounced here and elsewhere that elections are so sacrosanct that their results should not be easily overturned or tampered with. In Ghana, a Supreme Court judge stated in a judgement in 2012 that “For starters, I would state that the judiciary in Ghana, like its counterparts in other jurisdictions, does not really invalidate a public election but often strives, in public interest, to sustain it”. The COA stated in July 2001 that “In applying the Electoral Act the courts had to be astute not to disturb an election which on consequences, it was accordingly essential that the requirements for bringing an election petition before court had to be strictly complied with”. A point was made by the BDP lawyers that a subordinate court like the High Court is subordinate to the COA and cannot therefore, depart from its previous decisions.
It is not a cumbersome process when one desires to vote or to stand for political office through an election as a Member of Parliament or a Councillor yet, it is so when one wishes to challenge the outcome of such an election as a voter or a candidate. Is the use of technicalities in election petitions a deterrent to stopping or avoiding the manipulation of the electoral processes should such occur in the election cycle; are technicalities which could be used as obstacles to election justice, promoting the doctrine of free, fair and credible elections; are technicalities, notwithstanding that they are permissible legal instruments, not aiding and abetting the contamination of the electoral process? Competent people are better placed to provide answers to these questions.
In Tanzania for example, The Manual on Practice and Procedure in Election Petitions of 2016 Chapter 15 on Dismissal of Elections Petition For Reason of Irregularity provides that “Non-compliance with the Rules or other procedural irregularity should not be the reason for dismissing a petition, unless such non-compliance or irregularity in the opinion of the court has resulted in a miscarriage of justice…Section 115(5) of the National Elections Act of Tanzania as Amended in 2002 provides that “Where on an application made by the petitioner, the court is satisfied that compliance with the provisions of….will cause considerable hardship for the petitioner, it may direct that the petitioner be exempted from payment of any form of security for costs…Shouldn’t we learn something from Tanzania to improve our situation?
It is accepted that an election is a serious process that should not be tampered with as easily as any other process for it is such a sensitive matter. It is also accepted that technicalities are part and parcel of the legal processes. It is strange for me though, that judges in election petitions (and I stand corrected) cannot exercise some levels of discretion they would otherwise do in other matters before them. I want to believe that judges as arbiters to matters before them, exercise some level of discretion on such matters to say: on election petition allegations before me made by the other party, and with the greatest possibility in my mind that those may have occurred, it is in the public interest and justice to subject them to a test such the truth or lack thereof is established. But the Electoral Law it seems as argued in these election petitions on points of technicalities, have somewhat and with respect, bottled judges to think and reason in a revolving-door-like-manner even in situations where they may be of the opinion that some injustice may have potentially occurred. As a country holding herself to the virtues of democracy, it appears these virtues are scuppered by the Electoral Act itself in that it could be easy for a political party to commit electoral fraud yet, the rigidity of such law makes it difficult if not impossible, to substantively test electoral fraud allegations. I am not suggesting a bulela ditswe type of scenario where election petitions are not regulated in any shape or form but to say: is it not opportune for the legislature to give judges discretionary powers to determine whether allegations of electoral fraud put before them can be tested depending on the evidence before them. In the process, the underpinning thing would be to ensure that the sanctity of elections is preserved coupled with the legitimate expectation that no contamination of any sort has visited that election. They should be able determine like in all other cases whether such evidence is not frivolous and vexatious as legal scholars would say.
As the nation eagerly awaits the determination of election petitions to close the year, 2019 concludes with the stand-off between the President and his predecessor still to be resolved with the country seemingly or as a matter of fact, deeply consumed and polarised by this stand-off. The end result is that it has become difficult for the country to find a common rallying point going forward. This is my last conversation for this year and many thanks for having strongly agreed or disagreed with my view points on matters I have tabled on this platform. I value your readership. Enjoy the festive holidays and God Bless. I am prepared to be persuaded as always. Judge for Yourself!