A study, with the backing of the Independent Electoral Commission (IEC, has called for the establishment of a specialist elections court.
The study by the University of Botswana’s Democracy Research Project which was contracted by the IEC also backed opposition parties’ call that the Commission should report directly to Parliament instead of the Office of the President.
Regarding electoral justice, the study says, while there are ad hoc electoral dispute resolution mechanisms, there are no specialist courts that deal with electoral disputes.
“As the 2019 UDC vs IEC court case at the apex court amply demonstrated, ordinary courts have no jurisdiction over elections appeals. In January 2020, the Court of Appeal stated that it did not have jurisdiction to entertain appeals raised by parliamentary candidates in election petitions,” the study says. A specialist elections court is, therefore, needed, it says.
According to the study, 72% of the respondents agreed with the statement that said the Secretary of the Commission should be appointed by Parliament and not the President while 70% of the respondents agreed with the statement that said the IEC should report directly to the Parliament.
“For the same reason, 73% of the respondents agreed with the statement that the IEC should be removed from the Office of the President. And lastly, 73% of the respondents agreed that the IEC Commissioners should be appointed by Parliament and not the President,” says the study.
These results demonstrate the respondents’ agreement to reforms suggested to strengthen the IEC, it says. “The results suggest that while the respondents generally trust the IEC and its ability to conduct credible elections, they still think that reforms would improve the performance of the IEC,” the study says.
The authors of the study said, “These results are not surprising as opposition political parties have always complained about the independence of the IEC as a department in the Ministry of Presidential Affairs, Governance and Public Administration.” In the same vein, 73% of the respondents agreed that the IEC Commissioners should be appointed by Parliament and not the President.
“The IEC is deemed to be a national organisation that should serve the citizens without creating an impression that it is controlled by the President,” the study says. The removal of IEC from the Ministry of Presidential Affairs, Governance and Public Administration, the study says, “will lay to rest arguments that it can be manipulated and used by the sitting President or the ruling party to win elections.”
The study reveals that these arguments were presented by some of the respondents, key informants and were covered in focus group discussions in Serowe South, Ghanzi North, Ghanzi South, Kweneng South and Selibe-Phikwe East.
The study says while the IEC bears the adjective ‘independence’, its independence is not clearly spelt out in the Electoral Act. Operationally, it is under the Office of the President and similarly, it cannot hire its own staff and draft its budget.
“While, overall, the election observation missions have not out rightly stated that Botswana does not hold free, fair and credible elections, there is room for improvement regarding low hanging fruits; e.g., counting ballots at polling stations, using indelible ink and using transparent ballot boxes,” the study says. Thus, the Electoral Act must be amended to allow for the realisation of the said low hanging fruits which would be the consolidation of electoral laws, says the study. It says “The high hanging fruit would be a replacement of the two Acts with the IEC Act.”
It recommended that the IEC must be guaranteed institutional independence in law establishing it in the Constitution.
It recommended that the Constitution must be amended to remove the IEC from the Ministry for State President and place it under Parliament (just like South Africa’s chapter institutions of which the IEC is part of). It must not just be independent, but it must also be seen to be independent for it to enjoy the trust and confidence that it needs to manage credible elections. The study also recommended that the law must be amended to allow public funding of political parties that contest for state power as a way of leveling the political playfield.
Regarding electoral justice, the study says, while there are ad hoc electoral dispute resolution mechanisms, there are no specialist courts that deal with electoral disputes.
“As the 2019 UDC vs IEC court case at the apex court amply demonstrated, ordinary courts have no jurisdiction over elections appeals. In January 2020, the Court of Appeal stated that it did not have jurisdiction to entertain appeals raised by parliamentary candidates in election petitions,” the study says.
A specialist elections court is, therefore, needed, it says.
