Monday, September 28, 2020

BCP EVMs court challenge withdrawn

By Joseph Balise

By consent of both parties, the long legal tussle in which Botswana Congress Party (BCP) challenged the use of electronic voting machines has been finally withdrawn.

This follows the repeal of the Act providing for the use of the electronic gadgets.

Appearing before Francistown High Court judge, Justice Lot Moroka Monday morning, as had long been anticipated, both parties consented to have the matter withdrawn and laid to finality because government had backtracked and gazetted the bill repealing the introduction of the electronic voting machines.

In gazetting the Electoral Repeal Amendment bill, government made it clear that after consultation with relevant stakeholders it had become clear that the use electronic voting machines was not widely accepted and therefore not in sync with public and opposition aspirations. It was therefore logical to repeal the act, which in the first place was never signed into law during the time of the legal challenge.

In its court papers, the BCP had filed a motion of notice on 8th December 2016 seeking the court to declare the Electoral Amendment Act No.7 of 2016 unconstitutional to the extent that it violated section 32 (2) (c) of the Constitution to the extent that it sought to replace the method of voting by means of the ballot paper with an Electronic Voting Machine and/or computer which does not produce a ballot paper indicating how the voter voted and which can be susceptible to counting and verification.

The opposition party also wanted the court to declare that the voting by electronic voting machine and or computers as opposed to ballot paper is not voting by ballot and further declaring that the Electoral Amendment Act of 2016 is unconstitutional and infringes against section 67 of the constitution to the extent that it abolishes supplementary registration of voters thereby disenfranchising all those who would qualify as voters after the period of general registration of voters lapses.

The court was further invited to declare the aforesaid sections of the Amendment Act No. 7 of 2016 invalid and that any action done in pursuance or execution or intended execution of the aforesaid provisions of the Electoral Amendment Act No.7 of 2016 is unlawful and invalid.

However, the BCP never had it easy as the state attempted to have the case thrown out because it had filed its declaration nine days late. However, the BCP filed an application for condonation for late filing which was granted by the presiding court.

In granting the application on 31 August 2017, Justice Moroka ruled that Botswana is a country known world-wide for its unfailing adherence to key democratic ethos characterized by conduct of free and fair elections. According to Justice Moroka, the fairness of the electoral process is a matter that all Batswana have interest in. Therefore, the manner in which elections are to be held, the transparency, reliability and integrity of the electoral process are matters all people of this country have a vested interest in.

The court ruled that the case is therefore not only important to the parties before court but to all citizens of the country. The judge said the infringement of the rules of the court in the case was minor and there was no demonstrable evidence of prejudice to the respondent arising from the delay.

In Justice Moroka’s view, the sanction of dismissal of the action would have been out of proportion to the transgression as the respondent sought to use a nuclear bomb to resolve a domestic quarrel.

The presiding judge said the case is on a sacred subject of national elections since the electoral system must inspire confidence among voters and be trusted to deliver a correct result. It must optimize citizen participation and give meaning to enfranchisement and that is what all Batswana aspire for. Therefore fundamental issues raised in the case must be resolved on the merits.

Following the appointment of BCP lawyer Gabriel Komboni to the bench and the case taken over by Dutch Leburu, the BCP sought to amendment its declaration which Moroka dismissed.

In the amended declaration, Leburu asked the court to declare the Electoral Amendment Act of 2016 and its usage in contravention of Electronic Transactions in terms of the Electronic Communications and Transactions Act of 2014.

Further, Leburu argued that the electronic voting machine and its usage as defined was not in compliance with Part 1, 11, 1V and V11 of the Electronic Communication Act and also sought an order setting aside the use an or intended use of the electronic Evidence Act as laid out in the amended declaration.

However, Justice Moroka ruled that the new claim that the BCP sought to introduce in its declaration could not stand as it was not captured in the statutory notice of the intention to sue.

The judge held that the order that BCP sought that the portions of the Electoral Amendment Act of 2016 are not consistent with the Electronic Communications and Transactions Act of 2014 should be set aside was incompetent because it is an immutable principle of law that Acts of Parliament rank parri passu as no Act of Parliament should supersede the other Act of Parliament, save where parliament has so legislated.

Justice Moroka ruled that the pleadings have long been closed and the report on the final pre-trial conference having been made an order of court, the pleadings cannot be re-opened because that will be contrary to the well known principle that it is in public interest that there should be finality to litigation. Both parties were further directed to pay their own costs in the case.

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Sunday Standard September 27 – 3 October

Digital copy of Sunday Standard issue of September 27 - 3 October, 2020.