Monday, June 1, 2020

High Court set to steal somebody’s Christmas

The Gaborone High Court will set the mood for the 2019 Christmas Day when it makes crucial judgements on the Umbrella for Democratic Change (UDC) elections petitions. The Court will on Christmas eve (December 23, 24) make pronouncements to determine the validity of UDC claims of elections irregularities against the Independent Electoral Commission (IEC) and Botswana Democratic Party (BDP), and the Directorate of Intelligence and Security (DIS) involving at least 17 constituencies mostly in south of Botswana.

The BDP have asked the Court to pull the plug on the UDC petitions and prevent them from going to trial by raising preliminary points in relation to the UDC’s ‘failure’ to comply with certain sections of the Electoral Act.

The UDC are demanding an opportunity for a full trial where they can substantiate their claims of ‘electoral fraud and corrupt practices’.

One of the major points raised by the BDP (represented by Bogopa, Manewe, Tobedza & Co) is failure by the UDC to plead commission of the corrupt and illegal practice by concerned BDP elected Members of Parliament, or with the knowledge and consent or approval of any of their election of polling agents.

The UDC seeks the High Court to direct that the election of the 17 BDP MPs be consequently nullified. In support of the their argument the BDP cites Section 105 (a)

“If upon the trial of an election petition the High Court certifies to the President that any corrupt practice or illegal practice has been committed in reference to the election of the subject of the petition, by or with the knowledge and consent or approval of any of his election or polling agents the election of that candidate shall be void, and a fresh election shall thereupon be held.”

The BDP argues that the UDC fails to demonstrate how the former’s candidates were involved in committing the corrupt illegal and corrupt practices as alleged.

“It is therefore clear that in order for an election to be voided by the High Court on the basis of corrupt and illegal practice, there must be a finding that the alleged corrupt or illegal practice was committed by the candidate or with the knowledge and consent or approval of any of the candidate’s election or polling agents.”

Consequently, BDP argues, the question that arises for determination is what material or particulars must be placed before the High Court in order for the Court to consider whether the corrupt and illegal practices were committed by the candidate or with the knowledge and consent or approval of any of their election or polling agents.

“Authorities are replete with the requirement that there has to be a specific averment in the petition that the offense was committed by the member or with the knowledge or consent with the election agent,” the BDP argues. It is the BDP’s contention that if the finds that the said corrupt and illegal practices have extensively prevailed at the election to which the petition refers, the solution available in terms of the Act is prosecution of the wrongdoers and not the voidance of the election. But the UDC (represented by Advocate Dirk Vetten, Toteng & Co, Bayford & Associates) argues that the BDP’s contention is premised upon an error.

“The error is to state that the only legal basis upon which the Court can come to the aid of the petitioners is via Section 105 (a) of the Act.” The interpretation of the Act in general and Section 105 (a) in particular is wholly incorrect, UDC argues.

“The provision does not apply to the conduct of the candidate. Instead, it creates vicarious responsibility laid upon the candidate for the acts of the election or polling agents.”

According to the UDC the provision (subject to provisions of sections 102,106 and 107) places a direct sanction on the candidate for the conduct of their election or polling agent. “It goes beyond the individual liability of the agent. IIt has the drastic (but entirely justified) consequence that the candidate must take the fall for the conduct of his or her agents.”

The BDP also wants certain petitions to be disqualified for failure to provide verifying affidavit of UDC key witness Moemedi Baikalafi. The BDP makes reference to Order 12 Rule 3 (1) of the Rules of the High Court: “Every petition shall conclude with the form or order prayed and be verified upon oath by or on behalf of petitioner.”

The Court also points that in an election petition, with its far reaching consequences, the need to prevent frivolous, untrue and unfounded allegations is manifest and this would largely be safeguarded b requiring the petitioner to confirm his allegations upon oath. “The petitions make allegations that they attribute to one Moemedi Baikalafi. However , with respect to both petitions, there is no verifying affidavit deposed to by the said Moemedi Dennis Baikalafi,” The BDP says, adding “Without this verifying affidavit, the Petitions insofar as they relate to the assertions attributed to Moemedi Dennis Baikalafi are a nullity.” But the UDC argues there is no such requirement for the verifying affidavit. “The contention in this regard confuses a verifying affidavit of the petitioner (which is a requirement of Section 117 of the Act read with Order 12 Rule 3), with a confirmatory affidavit of a person that may give evidence (which is not a requirement of the Act or Rules of Court).”

The BDP raises various points of non-compliance most of which have been challenged by the UDC. A panel of judges Barbabas Nyamadzabo, Godfrey Nthomiwa and Ookeditse Maphakwane will deliver their judgement on Decmber 23, 2019. Another panel comprising Justices Michael Leburu, Mercy Garekwe and Godfrey Radijeng will hand down its judgement on December 24, 2019.  

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