The Botswana Democratic Party (BDP) is challenging the Court of Appeal (CoA)’s jurisdiction over the Umbrella for Democratic (UDC) elections petitions which the latter is appealing following their dismissal at the High Court last December.The BDP on Friday (through their attorneys Bogopa, Manewe, Tobedza & Co) filed their notice to raise a preliminary point in relation to the Court of Appeal’s powers over the matter.
“The Court of Appeal does not have jurisdiction to entertain the appeals by the appellants,” BDP says.The party argues that there is no statute that confers the Court of Appeal with jurisdiction to entertain the elections petitions appeals and therefore the decisions of the High Court in relation to the petitions cannot be interfered with. “In terms of Section 106 of the Constitution of Botswana, an appeal shall lie as of right to the Court of Appeal from any decision of the High Court which involves the interpretation of the Constitution, other than a decision of the High Court under Section 69(1) of the Constitution,” the BDP says in support to their preliminary point
.“Section 69(1)(a) of the Constitution empowers the High Court with jurisdiction to hear and determine any question whether (i) any person has been validly elected as an elected member of the National Assembly or (ii) the seat of any such member has become vacant.”
The BDP, through their lawyers Basimane Bogopa and Busang Manewe, says no appellate court has an inherent jurisdiction to take appeals from judgments and orders of a lower court. Such jurisdiction, the party argues, can only be conferred by statute, but none has been conferred on the Court of Appeal with respect to the matters at hand. As a consequence, the BDP says, the decisions of the High Court with respect to the petitions of UDC President Duma Boko and at least a dozen others are final and cannot be appealed as the Court of Appeal has no jurisdiction to entertain the appeals arising therefrom.
“The only appeal that the Court of Appeal can entertain is the matter of Aubrey Tumelo Ramatsebanyana, which appeal relates to a local government election to the extent that the jurisdiction to entertain an appeal for a council seat is not excluded by Section 106 of the Constitution.”
Boko and 14 other appellants were candidates for election as members of the National Assembly and the BDP argues that their petitions are those matters contemplated by section 69 (1) of the Constitution and instituted in terms of the Electoral Act CAP 02:09.In their petitions, the UDC candidates sought a determination by the High Court that their opponents from the BDP were not validly elected to the National Assembly and consequently that their seats should be declared vacant. Following the decision of the High Court to dismiss their petitions the UDC have approached the Court of Appeal for orders setting aside the decisions of the former.
“The said Appellants purport to approach the Court of Appeal as of right which in terms of Section 106 of the Constitution is expressly excluded. By virtue of section 106 of the Constitution, section 10 of the Court of Appeal Act CAP 04:01 is also inapplicable… The Appellants cannot avail themselves of the provisions of Section 11(a) – (e) of the Court of Appeal Act which provisions confer the Court of Appeal with jurisdiction to entertain appeals by leave,” BDP argues.
The ruling party calls for the UDC appeal to be dismissed with costs.Speaking to Sunday Standard UDC attorney Boingotlo Toteng however dismisses the BDP’s preliminary point arguing that there was never a trial and as such the argument raised by the BDP is baseless. “The High Court only dismissed the petitions based on points of law. There was never a trial. It’s totally ridiculous what they are saying. I expect them to withdraw the preliminary point just as they did on the Noah Salakae petition,” says Toteng of Toteng Attorneys.