In a groundbreaking judgement, the Francistown High Court recently dismissed an application by the state for the dismissal of the Botswana Congress Party (BCP) application against the use of Electronic Voting Machines (EVMs). The state wanted the case thrown outside throw the window because BCP had failed to file its declaration within the stipulated time frame as governed by the Rules of the High Court.
The presiding judge, Justice Lot Moroka however held that the case cannot be dismissed on technical grounds given its importance in the electoral process and upholding of democratic ethos and values that Botswana is renowned for.
Justice Moroka held that the main action is a sacred subject of national elections and that the electoral system must inspire confidence among the voters, and be trusted to deliver a correct result. It must optimize citizen participation and give meaning to enfranchisement.
Justice Moroka is right because this case is not only important to the parties before the court but to all citizens of this country as the fairness of the electoral process is a matter that all Batswana have interest in.
As he rightfully stated, the infringement of not filing the declaration within the stipulated 14 days in the case were minor as there was no demonstrable evidence of prejudice to the state arising from the delay.
We cannot agree more with Justice Moroka and the legislature for introducing the said rules as they are largely aimed towards the achievement of a just, efficient and speedy dispensation of justice.
Although BCP had delayed by nine days to file its declaration in accordance with the High Court Rules, the delay could never have been enough justification for a case of such national importance to be simply dismissed on technicalities before proceeding to substantive legal arguments.
Justice Moroka is therefore correct in holding that this is a very profound rule which should only be enforced by a presiding court in such a way that a just, efficient administration of justice is attained. Although the discretion vests with the presiding court, it is nevertheless not a light discretion but one that desires to be exercised judiciously by the courts.
Judiciousness entails the employment of practical expediency in the resolution of disputes. It demands of a judge a nuanced, fair, balanced, prudent and impartial exercise of discretion. Discretion is said to have been exercised judiciously if its effects are just, fair equitable and not arbitrary and irrational.
From where we stand, a sanction for non-compliance with the rules, by the BCP, which is disproportionate to the transgression is too little and would be unjust as a sanction which is too harsh. In other words, the punishment for non-compliance must meet the transgression and ensure a speedy dispensation of justice. Since the BCP had demonstrated that it has a reasonably arguable case on the merits, it is only fair that the court did the right to allow the case to continue. Cases of national importance, such as this one, should never be lightly dismissed on technicalities.
