- IEC Act states that petitions should be concluded in 90 days
- Judiciary is not independent – UDC lawyer
- Little hope for positive outcome – UDC lawyer
- We are on the right track – BDP lawyers
By denying the Umbrella for Democratic Change (UDC) an inspection of the 2019 general elections evidence, the Independent Electoral Commission (IEC) together with the ruling Botswana Democratic Party (BDP) is accused of playing delaying tactics to weaken the election petition cases on technicalities.
About 7 petitions will proceed for trial, while some were dismissed on technicalities. Those dismissed on technicalities have however been taken to the Court of Appeal.
A panel of three High Court Judges in Gaopalelwe Ketlogetswe, Itumeleng Segopolo and Omphemetse Motumise gave a green light for 7 UDC cases to go for trial last Friday.
The UDC has as a result requested for the IEC to bring forth election evidence to be inspected, but the Botswana Democratic Party (BDP) and the IEC are objecting to the UDC’s request.
The UDC lawyers have consequently come out to accuse the IEC and the ruling BDP of buying time to drag the matter beyond the 90 days period in which the election petitions should be tried and resolved as per the Electoral Act. Speaking to The Botswana Gazette yesterday (Monday), Dick Bayford said the objections by both IEC and the BDP are mainly meant to delay prosecution of the cases.
“We certainly believe so, all these objections are meant to delay the petitions and eat into the 90 days period that the cases have to be resolved in. We are however hopeful that the courts will not see us at fault of failing to actively prosecute the petition,” stated Bayford, who is the UDC lead counsel in this matter.
According to the Electoral Act Section 121, election petitions ought to be tried and resolved within a period of 90 days from the date of elections. “An election petition shall be tried and determined by the High Court within 90 days of the presentation of the election petition under section 120,” states the Act. It continues that, “Provided that when an election petition is not tried and determined within the period specified under this subsection due to a failure by the petitioner to actively prosecute the petition, the High Court shall dismiss such petition for want of prosecution.”
He however pointed out that the delay tactics by the two respondents (IEC & BDP) cannot be brought up before the courts at this stage as it would be deemed premature. In addition to Bayford’s sentiments, Nelson Ramaotwana, who also forms part of the UDC legal counsel, said the judiciary in Botswana is not independent from the executive and for that reason, there is little hope of a positive outcome for the UDC in election petitions.
Interestingly though, BDP lawyers believe that the UDC has no reason to panic because there is still ample time for the petitions to be heared before the 90 day period elapses.
Basimane Bogopa had the following to say, “We are not trying to frustrate their efforts, we are following the provisions of the Electoral Act. We are on the right track. The provisions must be followed. We have every right to believe that all the petitions will be heard and concluded before February 23rd.”
Yesterday (Monday) the IEC issued the courts a notice to object inspection of elections evidence which had been requested by some of the UDC petitioners. In their notice the IEC stated that “The first Respondent object to the inspection of the cast ballots, spoiled ballots, unused ballots, ballot paper verification account, statistics and or ballot papers issued per polling station and the ballot envelope account.”
The IEC’s objection was on the basis that the Petitioners have failed to demonstrate good or sufficient cause to inspect the documents above.
IEC said the documents are irrelevant to proving and/or disproving any facts in issue, as identified in the pleadings before court.
Seven petitions belonging to Entebetse Boitshwarelo and Maneke Segootsane, Mmashoro (Serowe West Constituency) and Kaudwane (Letlhakeng/Lephepe constituency). Gaborone South being James Matlhogojane (Selemela ward), Olefile Motswasele (Naledi Central), Olebogeng Kemelo (Bontleng ward) and that of Mogalakwe Mogalakwe who was the Alliance for Progressives council candidate at Mosolotshane/Moralane ward (Shoshong constituency) as well as Noah Salakae, who was the UDC parliamentary candidate in the Ghanzi North constituency have been cleared for trial.
On the 15 cases filed at the Court of Appeal, Court of Appeal (CoA) Judge Lakhvinder Singh Walia last Friday said the opposition has reasonable arguable cases on elections appeal hence he found no reason for refusing the expedited hearing of the appeals. The appeal cases which the UDC was advised to consolidate, will be heared on the 29th Juanuary 2020.