BY MPHO KELEBOGE
Chief Justice Terrence Rannowane has challenged the Botswana Movement for Democracy (BMD) to reconsider its decision to drag him into its case against the Umbrella for Democratic Change (UDC) as a Returning Officer in the election of the President.
In July, the BMD launched an urgent Interlocutory Application before the High Court seeking to be given rights to participate in the UDC meetings as well as other decision making bodies of the coalition party.
In the Review Application, the BMD sought to be given an opportunity to participate in the selection of the Presidential candidate to be presented by the UDC in the forthcoming 2019 general elections to the Chief Justice who is the Returning Officer who receives nominations for Presidential candidates in respect of the President of Botswana.
But through his lawyers, Garebamono & Pillar Law Practice, Rannowane argued that the relief sought against him is not legally competent.
“Such relief if granted, would constitute an improper intrusion into the doctrine of separation of powers by the Court through interdicting the First Interlocutory Respondent (Chief Justice) from carrying out his duties as Returning Officer set out under the Constitution and the Presidential Elections (Supplementary Provisions) Act for the process of nominating and determining whomever shall be elected by members of the National Assembly as the President of the Republic of Botswana.,” the lawyers argued.
They also argued that the relief sought against Rannowane is not legally tenable. “Such relief, if granted, would constitute an unlawful fettering of the power and discretion given to the First Interlocutory Respondent (Chief Justice) by the Constitution and the Presidential Elections (Supplementary Provisions) Act to determine whomsoever shall be deemed dully nominated as a candidate for elections to the Presidency of the Republic of Botswana,” Rannowane said through his lawyers.
The lawyers said in terms of the Constitution and the Presidential Elections (Supplementary Provisions) Act, the power and the exercise of discretion by the Chief Justice (Returning Officer) cannot be in legal proceedings.
“The interlocutory application is premature with respect to the process to be overseen by the First interlocutory Respondent (Rannowane) as Returning Officer in terms of nomination and election to the Presidency of the Republic of Botswana. No right has yet inured to any person to be nominated as a candidate for the Presidency,” the lawyers argued.
Rannowane also took issue with the alleged failure by BMD to issue him with a 30-day statutory notice.
“The interlocutory application is not competent on account of the fact that the Applicant has failed to afford him the 30 day statutory notice period required by the State Proceedings (Civil Actions By or Against Government or Public Officers) Act. The giving of such notice and the effluxion of the notice period is peremptory. Failure to do so renders the application void,” Rannowane said.
The BMD also sought to participate in the selection of the persons to be nominated as parliamentary candidates to be presented by the UDC to be presented by the UDC to the Independent Electoral Commission (IEC).
But the IEC which has also been dragged into the matter has also raised questions into the decision by BMD to drag it into the matter.
Through its lawyers, Minchin& Kelly (Botswana) the IEC said “The Interlocutory Respondent intends to raise the following questions of law; whether the relief sought against the 2ndInterlocutory Respondent (IEC) is competent and/or lawful given; -the Provisions of Electoral Act Cap 02:09 (the Act), specifically section 35 (6) thereof, which makes it mandatory for the Returning Officer to receive nominations tendered to her.
Any challenge to the nomination process should be by way of an Election Petition Instituted in terms of section 116 of the Act; after the elections.
-The entire facts and basis of the Interlocutory Applicant’s complaint deals exclusively with matter between the latter (BMD) and the 3rd Interlocutory Respondent (UDC).
“The remedies in the circumstances are therefore wrongly sought against the IEC,” the Commission said.