SONNY SERITE & LAWRENCE SERETSE
In an interview with eBotswana on July 3rd, 2018 the leader of the Botswana Movement for Democracy (BMD) confirmed that the Botswana Congress Party (BCP) was a full member of the Umbrella for Democratic Change (UDC) and that there was no need to file an amended constitution. In an interview with this reporter over the weekend, Advocate Pilane distanced himself from his previous legal position and stated that he is taking the UDC to court over the BMD’s expulsion on the grounds that that the UDC could not have formed a proper quorum if it involved the BCP in its decision to expel his party.
‘‘We are the real UDC; the charlatans have betrayed the People’s Project’’, those were the first words uttered by Botswana Movement for Democracy (BMD) President Advocate Sidney Pilane over the weekend when this publication enquired on the way forward following the announcement by Umbrella for Democratic Change (UDC) President Advocate Duma Boko that the BMD has been expelled from the UDC.
Pilane has issued an additional warning to UDC President Boko, saying that it is wrong to refer to him as the UDC President because, according to Pilane, Boko has no legitimate claim to the UDC presidency. ‘‘The President of the UDC is elected at a Congress of the UDC. Unless you have been so elected, you are not, whether you and others have called you that. That you
have called yourself president and others have called you president does not make you president.’’
In an interview with The Botswana Gazette on Friday, Boko disparaged Pilane’s interpretation of the constitution, “the leadership of the UDC was elected by a committee set up and agreed upon by all the contracting member parties, I do not know what exactly is confusing him about it, I doubt he even knows the constitution.”
Pilane revealed that he is ready to “expose the ignorance of those who base their arguments on the principle of issue estoppel.” In legal terms, estoppel is the principle which precludes a person from asserting something contrary to what
is implied by a previous action or statement of that person or by a previous pertinent judicial determination.
In a radio interview last week, Bayford argued that Pilane cannot claim that Boko is not the UDC President and that the BCP is not a member of the UDC when he has conducted himself and been part of the decision-making processes of the UDC that recognised both Boko and the BCP. Pilane has in the past acknowledged them to be rightfully holding their respective positions in the UDC and conducted himself and the BMD in conformity with that recognition. Bayford and other legal experts argue that the principle of “issue estoppel” will find Pilane to have acted and conducted himself in a manner that acknowledges Boko as President and BCP as bona fide member of the UDC in accordance with the umbrella’s constitution. Pilane, who has a legal career spanning over 40 years, dismisses the estoppel argument as baseless.
‘‘We are working on court papers and will file soon. We do not know what they will do and we do not care. The only thing about them which is predictable is greed, dishonesty and lack of honour. We will meet them on their own low ground. On the issue of estoppel, we will deal with it in court and demonstrate that it is ill-conceived’’, Pilane said.
Pilane said that if the BCP are members of the UDC, they must produce evidence that they are and not rely on the issue of estoppel. ‘‘That negative defence implies that they have no positive evidence of their membership. Membership of an organization and that one holds office in that organization is a matter for the constitution of that organization and of nothing else. What you have called yourself and have been called by others does not make you that. Call yourself the President of Botswana if you wish, and have all others call you that. In the end, whether you in fact are is a matter for the Constitution of Botswana and not what you and others, whatever their number, have called you and you have called yourself’’, Pilane pointed.
Giving the example of a man and woman who behave like a married couple, Pilane sought to demonstrate how the principle of estoppel cannot always be relied on. ‘‘Whether you are married is a matter of law and not what you
have said and done, even if you thought you were. Marriage depends on having fulfilled the formalities prescribed by law; it cannot arise by virtue of the activities and sayings of men and women, he concluded his argument.
On what led to the expulsion of the BMD from UDC, Pilane said the primary target were BMD constituencies. ‘‘The motivation is that people in leadership positions in the BCP and BNF needed constituencies for themselves. If we had agreed to give them all but 2 of our constituencies, the conspiracies that resulted in our purported expulsion, which we reject as un lawful, would not have occurred. If we had succumbed to their greed and given up our constituencies, not even we would have been their target’’, he said.
The UDC President however denies the allegations, stating that all constituencies it is contesting are done under the banner of the UDC but managed on behalf of the umbrella by the various parties that make up its membership. Through a series of consultative processes, that required the recognition of the BCP as a member and himself as president of the Umbrella the various member parties of the umbrella agreed the allocation, “there was no targeting of the BMD, their expulsion from the umbrella was due to their bringing the Umbrella into disrepute.”
Pilane refuted this denial and claimed that he became the target of BNF and BCP leadership be-
cause of their perception that he was an obstacle to the UDC’s aspirations on BMD constituencies. ‘‘Little did they realize that I was fighting to protect the BMD’s position and interests at the behest of the BMD itself. I was not acting alone; the refusal to give up our constituencies was not mine alone; it was a unanimous one. Their perception was that if they got rid of
me, they would have an easier time dealing with a weaker BMD. When I did not go, by unanimous agreement within the BMD, they applied what they thought was the final solution: get rid of the BMD and steal its constituencies’’, the BMD
leader told this publication.
‘‘It is dishonesty, lack of trustworthiness and greed which explains why they (opposition) have lost elections for the last 52 years continues. We, the BMD will, as ever before, stay true to the People’s Project which, in any event, was our brainchild and became possible on account of our initiatives and efforts’’ Pilane claimed.
Pilane as a parting shot claimed that the UDC has, since it was registered, not filed any returns nor sought of the Registrar approval of anything since its registration in August 2012 until 2018. ‘‘The recent constitution that the Registrar rejected was the first attempt at filing since registration in August 2012. No attempt to file anything could have been lawful
and successful unless it was done in accordance with the Constitution of the UDC’’, he said
On the other hand Boko states that the UDC annual returns were filed with the Registrar. Insiders claim that BMD wants to compel the Registrar to deregister the UDC should it emerge that no returns have been filed as per the act. “The Registrar, according to his previous correspondence to the Umbrella has no powers over the UDC because political parties are exempt from the Societies Act and that is why he rejected our amended Constitution; because he has no power over political par-
ties,” Boko countered.
Observers say that the UDC should take BMD to court and interdict them from using the party’s name in their campaigns but speaking to this publication Boko says he is leaning towards BMD experiencing low turnouts and voter rejection, ‘it will be taught a lesson by the public.” This past Sunday the BMD’s rally in Tsholofelo East experienced exceptionally low turnout.