Adam Phetlhe
I am incompetent to suggest whether the Electoral Act in so far as it relates to voter registration is in conflict with Section 65A (12) (c) of the Constitution. That is to say, it appears unconstitutional and must be struck down. Section 65A (12) (c) mandates ‘elections are conducted efficiently, properly, freely and fairly’. The sum total of this provision in my view, is that voter registration should be transparent in order to pre-empt any eventual doubts about its credibility and legitimacy.
A genuine transparent process does not have a dark phase in between. It cannot therefore, be transparent if key stakeholders are shut out of the process. It should be reasonable to suggest registering of bogus voters could possibly begin at this stage with voter trafficking being the probable point of departure. Voter trafficking does not only affect national elections but individual political parties as well during their primary elections. It is a common thread across these parties because those at the belly of facilitating it say so.
During the 2018 BDP primary elections, the most talked about constituency alleged to have experienced intense voter trafficking was Gaborone North where the incumbent MP Hon Mpho Balopi was said to have been at the centre of the activity. He has denied involvement. In arguing that the Electoral Act somewhat permits fraud during voter registration, I will rely on an Affidavit of Fact by one Emmanuel Seretse Mohalodi dated 26 November 2019.
On one hand, the Electoral Act as has been confirmed by the Court of Appeal on 19 December 2023 prohibits political parties and other key stakeholders to oversee voter registration, probably the most important phase of the electoral process. On the other, the same Act permits political parties to oversee the tail-end of the electoral process in terms of amongst others, actively taking part in the 42-day period to verify the voters roll, being present during the actual voting period, counting and verifying of ballots and the ultimate declaration of the winner.
In a sense, the Act denies to give with one hand and immediately as if it is an afterthought, gives with the other. I am yet to be persuaded why the majority BDP lawmakers who call the shorts in law making have not seen the illogic of shutting out political parties during voter registration. But I should neither be overly surprised nor shocked because some of them were over the moon in the just ended parliament session when the Court of Appeal all but confirmed that voter registration is exclusive to the Independent Electoral Commission (IEC).
The purpose of overseeing voter registration by key stakeholders such as political parties in the main, is to ensure that as far as is humanely possible, only bona fide voters are registered to prevent fraud in all its manifests. It is also intended to ensure there are as far as possible, no election petitions post the elections. Untested (because the merits of the 2019 general election petitions never saw the light of day) but a hard-to-ignore affidavit has been circulated in various news platforms detailing how fraudulent the 2018 voter registration unfolded right under the noses of some of the IEC staff members who are accused by the author of the said affidavit to have taken part and facilitated vote rigging/voter trafficking in one respect or the other.
The affidavit is detailed under the following headings: DISS Slash Fund; Double Registration of Voters; IEC Role in Assisting BDP During Registration Exercise; IEC Headquarters Moles; Transportation During and Before Elections; Snubbing of Anti-Masisi Camp and Distribution of National Identity Cards on Election Day. In the closing paragraphs of the affidavit, the author observes that ‘I confirm that the BDP rigged the 23 October 2019 general elections by circulating voters from one constituency to another to vote twice contrary to the principle of one man one vote.
Finally, I confirm that the results ascribed to the BDP from the just ended general election, especially south of Dibete, do not reflect the will or choice of the voter contrary to Section 13 of the Constitution as read with Section 31 (2) of the Electoral Act (Cap.02:09). The results as released by the IEC indicate the BDP in the south of Dibete, indeed had a clean sweep at both parliamentary and council seats. The colour of the election results map in this region is red.
While I cannot vouch for the truthfulness of the affidavit as it has not been judicially tested, would the author risk perjury by deposing falsehoods in front of a Commissioner of Oaths? Would he risk being sued for defamation by publicly dropping names of who’s who not least the President, his vice, the Private Secretary to the President and the feared Director General of DIS? As far as I can recall, individuals named in the affidavit have not sought recourse in court to clear their names. Why would someone not immediately seek legal recourse when his/her name is peddled to have been connected with election fraud? Your guess is as good as mine. Assuming for argument’s sake the contents of the affidavit are the true reflection of what transpired during the 2018 voter registration exercise, what stops the same from taking place in the ongoing voter registration exercise? They say the leopard does not change its spots.
The question should be: would voter registration clerks of political parties not have been able to detect the alleged rampant, fraudulent registration of voters as the affidavit suggests? My guess is that much as political party registration clerks may not have uncovered all the fraud as alleged in the affidavit probably because of resource constraints, other impediments and the complex and clandestine nature of perpetuating electoral fraud at the voter registration stage, they would have certainly in my view, prevented the alleged runaway rampancy. But because the IEC is unguarded by the key stakeholders during the voter registration stage, the rampancy of electoral fraud in the scale and magnitude as described in the affidavit is certainly set to obtain.
Like I have argued in the opening paragraphs, the Electoral Act as regards voter registration, is hugely skewed towards the IEC and hugely skewed against political parties whose very existence has led to the birth of the IEC. Without political parties, the IEC would cease to exist. Why then unfairly limit them through some legal sophistry of sorts from the process they are intimately and legitimately attached to? I still believe the Justices of Appeal commented on the provisions of Section 65A (12) (c) narrowly.
No progressive court would seem to suggest conducting elections ‘efficiently, properly, freely and fairly’ does not impose a ‘right’ whether such is, or is not not explicitly stated in law. One jurist said ‘A right may be constitutionally protected even if it is not explicitly stated in the Constitution’. It is my respectful submission that one such ‘right’ is for political parties to partake in the voter registration exercise for the good and benefit of democratic elections. Many institutions like the National Democratic Institute and SADC say so. But the IEC has unashamedly said it is not bound by the SADC principles on managing and monitoring democratic elections. Why then bother to be part of a process that embraces these principles. It is ludicrous if not insane.
The Electoral Act with respect to prohibiting political parties from observing voter registration as determined by the Court of Appeal provides a dangerous window through which all manner of electoral fraud will be committed in the scale or worse than what the affidavit purports. It is laughable that political parties have the opportunity at the tail-end of the electoral process to remedy the wrongs committed at the registration phase. By then, the horses would have long bolted. It is simply a fait accompli. The registration of voters in Botswana is so flawed that it cannot by any wild imagination, deliver a credible voters rolls let alone a general election. Against what information would political parties be disputing the voters roll when they did not have it from the onset? I am prepared to be persuaded otherwise as always. Judge for Yourself!
*Compliments of the New Year.