Wednesday January 29, 2020 marked the end of the road for the Umbrella for Democratic Change (UDC) election petitions.
Following their loss at the High Court in December 2019 over failure to comply with certain sections of the Electoral Act in relation to election petitions, the UDC were now pinning their hopes on a five member Court of Appeal panel.
And just as they did at the lower court, The Botswana Democratic Party (BDP), and the Independent Electoral Commission (IEC) raised preliminary points to ensure the case ended before it even began.
The BDP raised a point in limine challenging the Court of Appeal’s jurisdiction to entertain the UDC appeal. In their view the BDP said Court of Appeal did not have jurisdiction to entertain the appeals by the appellants. BDP lawyers Basimane Bogopa and Busang Manewe (Bogopa, Manewe, Tobedza & Co law firm),argued that there was no statute that confers the Court of Appeal with jurisdiction to entertain the elections petitions appeals and therefore the decisions of the lower court (High Court) in relation to the petitions could be interfered with.
The BDP said no appellate court has an inherent jurisdiction to take appeals from judgments and orders of a lower court. Such jurisdiction, the party argued, can only be conferred by statute, but none has been conferred on the Court of Appeal with respect to the petitions.
As a result, the BDP argued, the decisions of the High Court with respect to the 14 petitions were final and could not be appealed as the Court of Appeal has no jurisdiction to entertain the appeals arising therefrom.
But the UDC had a different view. The coalition’s lawyers Dick Bayford (Bayford & Associates), Boingotlo Toteng (Toteng & Company), Advocate Dirk Vetten (SA), Mboki Chilisa (Collins Chilisa Consultants), and Advocate Alexander Freund (SA) argued that because the petitions were declared a nullity, the High Court had not determined the question of whether the election is valid as contemplated in Section 69(1) of the Constitution.
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.
“Consequently the point raised by the BDP respondents does not yet arise, and the interpretation of the exception to section 106 does not fall for determination,” UDC argued.
“It may be that if the UDC candidates are successful in the appeal and in the trials, that it will be the BDP candidates that will have to motivate whether there is an appeal as of right, or by way of leave, on a decision of the High Court under section 69(1) that does or does not involve the interpretation of the Constitution.”
As a result, the UDC argued, the preliminary points raised by the BDP in the appeal had no merit. “It is clear that they have been raised in an effort to prevent the proper ventilation of matters that are of significant importance.”
The five member panel of the CoA led by Judge President Ian Kirby however ruled in favour of the BDP, IEC. “The Court of Appeal has no jurisdiction to entertain these appeals,” Kirby pronounced.