Since the beginning of the election petitions, the Umbrella for Democratic Change (UDC) has had it tough in persuading the judges to rule in its favour. And this particularly so when one considers that in the concluded sessions where preliminary points of law were the deciding factors, the majority of judges of the High Court ruled against the UDC. Even then, there were dissenting opinions its favour. In the latest matter where the Botswana Democratic Party (BDP) and its ‘partner in crime’ the Independent Electoral Commission (IEC) were objecting to the UDC’s access to the election materials in constituencies and wards it is complaining about, the UDC prevailed resoundingly in that not only did it do so but that there was no dissenting opinion. The decision on the objection matter could have a far reaching impact on the case going forward in that even if in the end the UDC does not win the election petition overall, the nation could get to know if or not, some manipulation in whatever form or shape took place.
I was taken aback when the IEC decided to fight in the BDP’s corner by objecting to the UDC’s desire to have access to election materials particularly that when the High Court ordered that such access be granted, the IEC and the BDP were in court and never raised any objection thereto. It would appear the IEC and BDP congregated somewhere subsequent to the court order to challenge it. It is their right to do so but that said, it looked from where I stand odd, strange and unachievable. I have always wondered why the IEC and the BDP, subsequent to their public declarations that the general elections were free, fair and credible, would have an issue with the petitioners seeking to clear their doubts if indeed this is the case. It can only and reasonably so, be argued that there could be more than meets the eye with the conduct of the IEC being in cahoots with the BDP in trying at every available turn, to suffocate and stifle the election petitions on technicalities and objections. Like I have stated, they are exercising their legal rights. It is understandable albeit reluctantly in the BDP case on account that it is the chief respondent to the election petitions but not so with respect to the IEC. As the election management body and in my view, the IEC should be playing a more promotional/ conciliatory role than an adversarial one.
The judges specifically asked both IEC and the BDP what prejudice if any they would suffer if the petitioners accessed the election materials given particularly that Section 79 of the Electoral Act allowed election petitioners to do so. A point was made further by the UDC that because the custodian of the election materials in the person of the Registrar of the High Court did not himself raise any objection to the inspection of election materials as ordered by the judges, what prejudice would be suffered in the process. As someone watching the proceedings from a distance and with my limited knowledge, I could tell both the IEC and the BDP were clutching at straws and were themselves on a fishing expedition of some sort to delay and frustrate both the election petitions and the overall process. In parliamentary set up, the two parties could be accused of filibustering. That is, they are taking a prolonged route to a process which itself is not illegal. So what is the importance of this UDC victory?
It is important in so many fronts but I will pick a few of those. Firstly and more important for me is that this latest victory could have a direct or indirect bearing on the appeal lodged by the UDC at the Court of Appeal (COA) with respect to the December 2019 High Court judgements notwithstanding that the inspection of election materials is restricted to specific parliamentary constituency and council wards. If it emerges from the inspection that there was manipulation of some sort say in so far as the voters rolls are concerned, it could give credence to UDC allegations that the same may, on a balance of probabilities, have taken place elsewhere in parliamentary constituencies and wards complained about. I am saying on a balance of probabilities because at this stage, no inspection to other constituencies and wards has not been ordered. Judges of the COA are citizens like me and you who consume the same news everyone does and are therefore not immune from making conclusions on what they read and see on television screens. They follow the proceedings of the election petitions in their private capacities and would therefore make their own private conclusions or observations thereto.
Secondly, the objection to the inspection of election materials which has been decided by a unanimous bench, puts the UDC at a ‘vantage point’ in that should the inspection provide what they hope to harvest therefrom, it could be an added advantage in strengthening its cases that are going to trial. That is, if the inspection reveals and confirms Rre Noah Salakae’s fears he has consistently maintained particularly after that ill-fated truck that ended at the Inanda Hotel than at the High Court, it could prove key to determine that indeed the election in his constituency was rigged. Thirdly, the victory to inspect election materials could play a psychological effect on the overall IEC/BDP ability to defend the case going forward. The body language, confidence and sheer exuberance of the BDP lawyers in court during arguments on the objection matter was a far cry from that which was displayed during the December 2019 sessions. In these sessions, they did not struggle with any major interjections on points of law or any other related aspect from the judges. Based on what I witnessed on Wednesday, it suggested to me that they were exhibiting, somewhat, that they did not have the belief that they could confidently defend the case up to the COA stage. I could be wrong but I believe the pendulum, while not completely away from the BDP lawyers at this stage and not completely towards the UDC, could be hobbling around the mid-point waiting to be swung in either direction. The moment to do so is not far away.
Consequently, I submit that the UDC has scored an important victory (big or small) in the marathon election petitions case. This victory may very well have set a catalyst to the grand finale one anticipates. The expected twins and turns to the different stages of the matter as already witnessed make it even more delicious and tempting not to miss any session. I am prepared to be persuaded otherwise as always. Judge for Yourself.