Compliments of the New Year. I am back to where I belong and I guess the same applies to you dear reader.
It is common cause that the majority judgements dismissed the Umbrella for Democratic Change (UDC) election petitions primarily on account of non-compliance with the requirements of the Electoral Act. The majority Ladyships and Lordships stated on one hand that failure to comply is not only bad but incurably bad. The minority Lordships don’t seem to agree. Scathing dissenting opinions on the majority judgements suggest that notwithstanding non-compliance, it is important in the context of improving our electoral democracy, fairness and justice, to commit the election petitions to trial to establish whether or not fraud, corruption and illegal practices took place. With the latest development occasioned by Court of Appeal’s (COA) Justice Singh Walia to allow the consolidated UDC application to be heard on urgency ticket by the COA, there is a chance that the merits of the petitions could be heard and tested. That said, I submit that the sky wouldn’t have fallen had the UDC petitions gone to trial.
In this conversation, I am interrogating both the majority and minority judgements, the reasons why the former judgement prevailed and why the latter cannot simply be ignored for convenience.
But before dealing with both judgements, it is important to state that the UDC is the architect of its current circumstances owing to its failure to submit a fully compliant election petition. It should have been aware as I argue it is, that the court was not going to entertain any margins of error in that petition if past and similar cases are anything to go by. More disturbing on the part of the UDC is the fact that its leader Advocate Duma Boko was part of the defence team in the much cited Kono v Lekgari election petition back in 2001 wherein similar procedural matters as they obtain in the UDC case caused the collapse of Kono case. It is fair to state that the UDC legal team did not have to look elsewhere for research to its case than at the Kono case. The BDP lawyers’ arguments on preliminary points of law and the judgements by the Ladyships and their Lordships were anchored in large measure on the Kono case. By failing to comply with the Electoral Act in submitting election petitions, the UDC handed the BDP ample ammunition to derail its case before it could begin in earnest. On this point, the UDC legal team must look itself in the mirror and take full responsibility for the legal morass it finds itself in.
Majority judgement by the Ladyships and the Lordships
Their Ladyships and Lordships judgements were premised largely on the doctrine of precedent with respect to the interpretation of Sections 115 and 116 of the Electoral Act by the COA as can be seen from the much talked about Kono and other similar cases. It is an established legal position legal scholars tell us, that subordinate courts are bound by decisions of the apex court and cannot therefore depart from them. In this respect, their Ladyships and Lordships hands would be firmly tied behind their backs not to depart from the COA. It would explain why also, their Ladyships and Lordships were constrained to exercise judicial discretion in dismissing preliminary points of law raised by the BDP lawyers to allow petitions to go to trial. One other point the majority justices would have had at the back of their minds and which point has been stated by the COA is that election results should not be easily invalidated. It said “….In applying the Electoral Act the Courts had to be astute not to disturb an election….” This briefly explains why the majority decisions prevailed with the consequence that the petitions stood dismissed. But the minority Lordships differed fundamentally with their colleagues hence their dissenting opinions as will be shown later in this conversation. What do other authorities and scholars say about resolution to election petitions?
Writing in a paper titled “The challenges of adjudicating presidential election disputes in domestic courts in Africa” under the auspices of African Human Rights Law Journal, O’Brien Kaaba, a Doctoral candidate at the University of South Africa, says in summary that ‘Defective and fraudulent elections are common in Africa. Although there has been some improvement since the democratic wave of the 1980s and 1990s, sham elections are still prevalent across the continent….The judiciary has, however, almost always decided presidential election disputes in common patterns that militate against the growth of democracy on the continent. The common patterns are that all cases are dismissed on flimsy technical and procedural rules without consideration of the merits.” This view very much fits in the current election petitions.
Their Ladyships and the Lordships judgement was premised as already stated on the UDC election petition failures to comply with the Electoral Act and that this failure rendered such petitions a nullity in that they were not only bad, but incurably bad. This premise is however strongly contradicted by Bowen LJ in the Cropper v Smith case when he said “I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party.” The Constitutional Court of Zimbabwe held in the Nelson Chamisa v Emmerson Mnangagwa 2018 election petition that “It is common cause that the application was eventually served on the respondents….outside the timeframes stipulated in the Constitution….The applicant clearly breached the Rules of the Court and filed a defective application. However, due to the importance of the matter and public interest, the Court has the power to condone the non-compliance with the Rules in the interest of justice….. Where the Court considers that it is in the interests of justice to condone a departure from the procedural requirements, it is entitled to remedy non-compliance by giving an indulgence to the defaulting party.” The majority judgement was pretty much predictable, similar as it familiar with the other past judgements whose collapse was due to non-compliance. No surprises really! After all, courts here and elsewhere have pronounced very loudly and eloquently if I may add, that overturning elections results is not in their DNA. A Supreme Court of Ghana judge stated 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.” Should one read the majority Ladyships and Lordships judgements in consonance with the Supreme of Court of Ghana. Your guess is as good as mine.
It is almost if not a given that the majority Ladyships and Lordships held the view that technicalities far outweighed public interest. As soon as the UDC launched these election petitions, public interest inevitably and instantly became a major factor in the overall elections petition equation not only to be strongly considered, but factored in. This consideration I submit, would have been effected by committing the petitions to trial such that the nation would know whether the election was compromised somewhat or not, by some in our midst as alleged. Sadly and consequently, public interest in my view, has not been uppermost in the majority Ladyships and Lordships. Presiding over the Botswana Congress Party v Attorney General in the EVM case, Justice Lot Moroka held that “Issues of national interest can’t be dismissed on technicalities.” While it will be argued that his view does not bind his colleagues, it is apparent that his view resonates very well with the Zimbabwe Constitutional Court. Lord Penzance held in 1878 that “Procedure is but the machinery of the law after law-the channel and means whereby law is administered and justice reached. It strangely departs from its proper office when, in place of facilitating, it is permitted to obstruct and even extinguish, legal rights, and is thus made to govern where it ought to subserve.”
It is my considered view that when the name of the President whose party is alleged to be at the centre of the election petition and the alleged involvement of the intelligence agency did not entice the majority Ladyships and their Lordships to fully hear and determine their veracities, ‘travesty of justice’ was truly and firmly in the making. O’Brien Kaaba concludes his paper by saying: “The judiciary has routinely upheld clearly defective elections, erroneously considering it their duty to salvage defective elections as a matter of public policy. To achieve this, the courts have largely applied two techniques. The first is to simply dismiss election petitions on curable procedural technicalities without considering the merits of the case. Second, the courts have wrongly applied the substantial effect rule to uphold disputed elections, even in the face of glaring evidence….”
The dissenting opinions of their Lordships
Dissenting opinions are said to be provided mostly in legal cases of national importance with public interest the underpinning factor. In the principal residence case which was referred by the Mahalapye Principal Magistrate to the High Court for interpretation of principal residence just before the general election, there was a dissenting opinion from one of the three judges who heard the matter. In the UDC election petition, nine judges presided over the matter in three court sessions with three dissenting.
The three dissenting opinions in my view took a broader perspective as opposed to the majority who opted for a narrow, revolving-door-like perspective of relying heavily on precedence than influencing a positive change in the jurisprudential outlook of dealing with election petitions as a matter of public interest. The dissenting opinions are of the view that notwithstanding the defective election petitions in whatever form or shape and presumably in agreement with the Zimbabwe Constitutional Court referred to above, it is important in public interest I must re-emphasise, that in the spirit of improving electoral democracy and justice that the merits of the petitions are ventilated in court so as to establish whether the petitions are premised on frivolous and vexatious grounds as legal scholars always say Or, whether they are premised on solid and credible grounds. Only and only when UDC allegations are subjected to the stiffest legal tests from both the judges and the BDP lawyers would it become clear whether the election was stolen or not.
Unlike their majority colleagues, the dissenters are ignoring the precedence of the Court of Appeal which has held on several occasions that election results cannot and should not be nullified when compliance has not been meticulously followed. Why would they do so? They believe, I want to imagine, that the time has come to move away from the rigidity of proceduralism as one of the factors that determine the authenticity of an electoral process. Proceduralism is exacerbated at the detriment of election petitioners by the fact that there are no specific court rules meant to ease and facilitate submission of such election petitions. This fact has also been acknowledged in passing by the majority Ladyships and their Lordships. Why should Botswana be stuck in a dispensation that some progressive jurisdictions are moving away from or have done so? We are part of the global legal fraternity and that’s why the majority and minority judgements cited authorities from other jurisdictions to beef up their arguments.
The majority judgements suggest in my view that the sky would have spectacularly fallen had the UDC election petitions gone to trial while the minority does not think so. The former’s judgements were, as stated above, very much predictable, similar and familiar to past similar election petitions. They sought and succeeded to entrench the position that technicalities far outweigh substantive justice in such election. At the end of the day and through these judgements, it is easy to vote or stand to be voted for yet it is so onerous to question whether the electoral process from start to finish was compromised one way or the other. The minority judgements are providing a compelling alternative to question whether such electoral process was compromised or not by not placing too much emphasis on proceduralism. Dissenting opinions in the UDC matter cannot under any circumstances be ignored for convenience. It is time procedure to lodge an election petition is treated as a facilitating mechanism that can be cured if and when the need arises rather than using it to suffocate to eventually kill such petitions. As a parting shot, how many are willing to hear from the horse’s mouth if the 23 October 2019 general election was stolen by some in our midst or not? I am prepared to be persuaded otherwise as always. Judge for Yourself!