The Botswana Democratic Party (BDP) has accused the Independent Electoral Commission (IEC) of abusing its powers as provided for under the Electoral Act and the Constitution.
The BDP made the accusation in appeal court papers in a case in which it is challenging the decision of the court barring its candidate, Ignatius Moswane, from participating in the deferred Francistown West by elections.
The IEC whose officer had rejected Moswaane’s nomination is cited as the First Respondent while Whyte Marobela, who had interdicted BDP and its candidate Moswane from participating in the by election, is cited as Second Respondent.
The BDP states that IEC Electoral Act makes no provision for the returning officer or the Commission to assess generally whether a candidate’s participation in the elections, and more specifically the nomination process, is lawful or unlawful.
“By introducing this new requirement (which is absent from the Electoral Act, and which is also absent from the empowering sections of the Botswana Constitution), the IEC sets itself up as policeman and guardian of the rule of law in the sense that it takes upon itself the determination as to whether or not a candidate’s participation in the elections is unlawful or unlawful,” states the BDP‘s lawyer, Senior Counsel, Mark Antrobus.
According to the BDP, this is not the returning officer’s function and she is not empowered or entitled to make that determination.
“Returning officers of the IEC derive their powers from the Act.┬á Their powers are, like all other statutory officials, limited to those provided them by the Act.┬á They may not exceed those powers. To the extent that they do, their powers are unlawful and the court is bound to quash such unlawful action,” says the BDP. ┬á
The returning officer’s decision not to receive the nomination because of the court order in this case, the BDP says, is beyond her statutory powers and contrary to her statutory duties and was thus unlawful.
“The returning officer was accordingly not empowered to refuse to receive Mr Moswaane’s nomination.┬á She exceeded her powers in doing so and her decision was for this reason unlawful,” says the BDP.
The BDP says that even assuming that it could be argued that on the basis of the rule of law that a returning officer would be constitutionally obliged in the exercise of her statutory powers to comply with a binding order of court, this is not an instance where the returning officer was so constrained.  
This is because the court order (by Justice Tshepo Motswagole) did not interdict or prohibit the IEC from doing anything, says the BDP. 
“The court order did not bind the IEC to do or not to do anything.┬á┬á The existence of the court order accordingly did not render lawful what was an otherwise unlawful exercise of power by the returning officer in refusing to receive the nomination.
“The returning officer was accordingly not empowered to refuse to receive Moswaane’s nomination.┬á She exceeded her powers in doing so and her decision was for this reason unlawful,” said the BDP.
In deciding that she was empowered to refuse to receive Moswaane’s nomination paper in circumstances other than those provided for in section 35(8), (of the IEC) the returning officer also committed a material error of law in that she misconstrued her powers and the nature of her function, states the BDP.
“Her error was one which caused her to fail to appreciate the nature of the power conferred upon her with the result that she failed to discharge her statutory function. This constitutes a material reviewable error,” says the BDP.
The party says had the officer not made such an error of law she would have received Moswaane’s nomination. The returning officer clearly relied on the advice from the Secretary of the IEC that she should, unless and until a further court order was obtained, not accept the nomination tendered by Moswaane because of the interdict which had been obtained.
“It cannot however be disputed that the IEC was not party to the court’s order or that the internal appeal to the BDP’s Central Committee had been heard and dismissed. The effect of this was that the Mr Moswaane’s contentions as to why his nomination paper should be accepted were not heard or considered by the decision maker who was the returning officer.┬á Mr Moswaane was denied his fundamental right to be heard,” observed the BDP.
┬áThe BDP said what is required of IEC officials is that they conduct themselves in accordance with their statutory obligations and do what the Electoral Act enjoins them to do – namely receive nomination papers tendered to them which comply with the stipulated and very limited formalities as envisaged in section 35(6) of the Act.
Replying, Whyte Marobela said there is a reason why the IEC was not entitled to receive Moswaane’s nomination documents.
“It is for the simple reason that by accepting the nomination papers, fully aware of the existence of the interim prohibitory order of 31 October 2013, the IEC would have aided and abetted the 1st Respondent to commit the offence of contempt of court,” said Marobala.
Marobela submitted that despite the fact that the IEC was not party to the proceedings in which the interim interdict by Justice Motswagole was granted, by accepting nomination papers from Moswane it would have aided and abetted the latter in subverting a court order, thus exposing its officers to the peril of contempt of court proceedings.
“This is particularly so because senior officers of the 1st Respondent such as its Secretary, Mr Gabriel Seeletso, were present at the hearing before Motswagole J on 31 October 2013 and were thus aware of the existence of the interim order of that day,” says Marobela through his lawyers Jonas of Jonas Attorneys.
Marobela also submitted that by accepting the nomination papers from Moswaane, the IEC would have aided and abetted Moswaane in setting the order of Justice Motswagole at nought adding that this is impermissible and constitutes an assault on the good of the public.
“Thus, in this connection, rather than condemning the IEC for upholding the sanctity of the court order of 31 October 2013, the IEC must be singled out for commendation in this regard. It is submitted that its conduct is truly deserving of emulation by all and sundry in the country for the continuity of the democratic legacy that has been bequeathed to Botswana by its founders that has enjoyed since its inception as a Republic,” said Marobela.
