Monday, October 25, 2021

BCP wins first round in EVM case

Francistown High Court Judge Lot Moroka has said that the case in which opposition Botswana Congress Party (BCP) is challenging the legality of the introduction of the Electoral Voting Machines (EVMs) is of national interest and should not be wished away easily as it has a bearing on democracy.

The BCP is cited as the Applicant while the Independent Electoral Commission is representing the Attorney General Chambers.

Delivering his ruling, Moroka said justice to the parties and the case ought to be the focal point in the resolution of any controversy that arises out of non-compliance with the rules by any of the litigants.

The Attorney General had asked the court to dismiss the case arguing that the BCP had filed its application late.

Moroka said a sanction for non-compliance with the rules which is disproportionate to the transgression which is too little would be unjust as a sanction which is too harsh. He said there is need to locate the appropriate remedy consistent with the spirit and intent of the rules.

“Similarly, a sanction which visits prejudice upon the compliant party would be unfair and unjust. The punishment for non-compliance must meet the transgression and ensure a speedy dispensation of justice,” he said.     

The judge refused to dismiss the case saying it was a very important matter of national interest as it deals with the country’s elections. He said Botswana is a country that is known world-wide for its unfailing adherence to democratic ethos. He said key to this is the conduct of free and fair elections. He said the fairness of the electoral process is a matter that all Batswana have vested interest in.

“This case is not only important to the parties before court but to all citizens of this country,” he said

The judge said infringement of the rules in this case is minor and added that there is no demonstrable evidence of prejudice to the 1st respondent arising from the delay. He said the sanction of dismissal of the action would grossly be out of proportion to the transgression.

“The first respondent seeks to use a nuclear bomb to resolve a domestic quarrel, I am loath to non-suit the plaintiff with the nuclear sanction of dismissal,” he said.

The judge explained that the main action in this case is on a sacred subject of national elections therefore an electoral system must inspire confidence among the voters, and be trusted to deliver a correct result.  He said it must optimize citizen participation and give meaning to enfranchisement. He further said fundamental issues raised in the case must be resolved on merits.

“The first defendant has failed to relate the gravity of the non-compliance to the drastic remedy of dismissal it seeks. The application for dismissal is bereft of merit and cannot succeed. Conversely the plaintiff has fulfilled all the requisites of condonation,” the Judge said.

“The application for dismissal filed by the first defendant is hereby dismissed, the late filing is hereby condoned, the plaintiff declaration filed shall constitute the plaintiff’s declaration, the filing of the plea or any other process by the first defendant shall be made within 14 court days from today, the rest of the process shall be in accordance with the rules  and costs shall be in the cause,” concluded the Judge.

The case will go for Case Management Conference on 23 October 2017.

The government represented by Matlhogonolo Phuthego from the Attorney General (AG) had applied to court seeking remedy for non-compliance of the rules of court by the BCP regarding the lawsuit and sought that the court dismiss the case as it amounted to prejudice.

On the other hand BCP filed an application for condonation of late filing of the declaration in addition to its opposition of the AG dismissal application. It filed its declaration nine days late. Among some of the reliefs sought by BCP in the lawsuit were for the court to declare that the Electoral Act No.7 of 2016 is unconstitutional as it violates section 32(2) of the constitution by seeking to replace the method of voting by means of the ballot paper to be deposited into a ballot box with an EVM which does not produce a ballot paper indicating how the voter voted and when can be susceptible to counting and verification. It also seeks the court to declare that voting by EVM and or computers as opposed to ballot paper is not voting by ballot. BCP further seeks the court to declare that the Electoral Amendment Act No.7 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. BCP further seeks that the aforesaid sections of the Electoral Amendment Act No.7 of 2016 be declared invalid and set aside

In its memorandum of appearance, the AG raises the following defense against the BCP; that there is no such a thing as section 32(2) of the Constitution of Botswana, but that section 32(3)( C) of the constitution does not specifically prescribe the use of ballot paper as a method of voting where the parliamentary election is contested or in any constituency. It asserts that voting by means of an electoral machine is one of the methods by which a ballot may be given. The AG maintains that sections 27, 28, 29 and 30 of the Electoral Amendment Act no.7 of 2016, made provisions for a paper trail in so far as they provide for the recording of electronic votes and or results in prescribed form and verification by election, polling and counting agents. It also denies that the voting machines will be susceptible to hacking.

Regarding the delay in filing court documents, the explanation given by the plaintiff through its lawyer, Gabriel Komboni was that upon reading the defence raised by the Attorney General in its appearance to defend, the plaintiff saw the need to enlist the services of an expert in EVM to deal with the technical points raised by the AG which caused the delay. The defendant however objected to this saying that the BCP was not ready when it instituted its action and seeks to do its research as the case unfolds, which it deems as unacceptable further calling for the case to be dismissed.

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