On 21st November 2013 our democracy was adulterated when President Lieutenant General Seretse Khama Ian Khama postponed the Francistown West bye -elections under the disguise of ‘public interest’ and a dubious ‘petition.’ Owing to its incompetence and internal disputes, the Botswana Democratic Party (BDP) would, following Justice Terrence Rannowane’s judgment, not have contested the elections because its ‘nominee’, Ignatius Moswaane, had not been accepted by the Independent Electoral Commission (IEC) following an interim court order by Justice Tshepo Motswagole.
When President Khama gave, among the reasons for the postponement, the fact that there were pending court cases, including at the Court of Appeal (CoA), we opined that President Khama cannot have made such a politically risky and financially costly decision unless he is sure that the CoA will rule in BDP’s favour and/or has another plan should the CoA rule against the BDP. Admittedly, at the time, most people concluded that the CoA, which is widely believed to favour the BDP and President Khama in particular, will rule in the BDP’s favour.
Clearly, we were wrong with respect to the CoA since the CoA confirmed Justice Rannowane’s judgment. Justice Rannowane had held that, at the time of the submission of the nomination by Ignatius Moswaane, the interim order by Justice Motswagole prohibiting Ignatius Moswaane from submitting nomination papers was still operational. The CoA reasoned that “the concept of the rule of law obligated the IEC to obey the court order issued by Justice Tshepo Motswagole and accordingly declined to accept nomination papers from Ignatius Moswaane.” According to the Judge President, Ian Kirby, with Justices Isaac Lesetedi and Elijah Legwaila concurring, “Court Orders are to be taken at face value and should be respected without debate”. The Justices stated that “the IEC was legally justified and obliged to respect the said court order by refraining from accepting such nomination papers.”
Following this judgment, which asserts our judicial independence and respect for the rule of law, were it not for the ruling BDP and President Khama’s propensity to amend and/or manipulate the law for political expediency, it would be certain that Ignatius Moswaane will not contest the bye- elections scheduled for 25th January 2014. The contest will, rightly so, only be between the opposition Botswana Congress Party (BCP) and Botswana Peoples Party (BPP). After all, President Khama himself, in postponing the bye-elections, assured Batswana that “…the postponement does not amount to a withdrawal of the Writ of Elections and will not reopen the nominations of candidates, which can only be determined by ongoing legal process at the Court of Appeal.”
However, following suggestions by the BDP Attorney and Chairman of the omnipotent BDP Electoral Board, Parks Tafa, President Khama may yet adulterate our democracy and ‘save’ the BDP by withdrawing the Writ of Elections for the bye- elections. A new Writ of Elections would then allow the BDP to present a nominee, most likely Ignatius Moswaane, to contest the bye- elections. Considering the political and legal influence that Parks Tafa, also reported to be President Khama’s personal Attorney and business associate wields, President Khama may accede to his advice and withdraw the Writ of Elections and decree a new writ. In doing so, President Khama may well be advised that the courts are likely to hold that his action is not subject to judicial review for it not being an administrative action but an executive action. Also, President Khama may be advised that, in the face of litigation, he can invoke the disreputable section 41 of the Constitution of Botswana which protects the President in respect of legal proceedings.
The CoA has, beyond popular expectation, done its part by proving to the world that Botswana deserves to be the beacon of democracy it is internationally acclaimed to be. Judge President, Ian Kirby and Justices Isaac Lesetedi and Elijah Legwaila are indeed justices and have truly upheld their oaths of office. It is now up to President Khama to be the Head of State and uphold his oath of office and defend our democracy. President Khama has to bring back to life our black cow, Wetu, and dry our tears. President Khama needs to bring back the days when we, as voters and Batswana in general and not just the BDP, mattered.
Ndulamo Anthony Morima