Three Lobatse High Court judges, Acting Chief Justice Maruping Dibotelo, Justice Isaac Lesetedi and Justice David Newman will on Friday deliver judgment in a case in which Botswana Democratic Party South East North parliamentary candidate, Elijah Katse, is challenging his election loss to Botswana National Front candidate Olebile Gaborone in the 2009 general elections.
In opposing the application, Oteng Ketshabile, representing Gaborone, submitted that the case should be dismissed with costs because, amongst other things, security was given outside the period prescribed by the Electoral Act. Ketshabile said that section 117, 9(d) states that security for the payment of all costs, charges and expenses that may become payable by the petitioner shall be given either at the time of presentation of the petition or within 7 days.
Because the petition was presented on November 16th 2009, he said, the deadline for furnishing security was November 23rd. However, the petitioner only furnished the security on November 24th, a day late. Ketshabile maintained that the wording of section 117 is clear, and that the provision is mandatory.
“The failure by the petitioner to provide security within the mandatory seven day period is fatal. It is settled law that failure to comply with the mandatory provisions of the Electoral Act renders the petition null and void,” said Ketshabile.
He further said that it is for the petitioner to satisfy the court that he has complied with the provisions.
Ketshabile also said that it has been held that election petitions, like any other petition, has to be verified on oath , and that they quarrel with a document entitled “verifying affidavit” because it was not commissioned and therefore does not qualify as an affidavit.
“The position and designation of the person who administered the oath has to be stated so that we may establish if indeed she or he qualifies as a commissioner of oaths,” he said.
He referred to a previous case involving Rhoda Mwansa Kabamba vs David Toka, in which the court held that in the absence of the name and designation of the person who administered the oath on the affidavit, the court cannot be satisfied that she/he was indeed an appointed or ex-officio commissioner of oaths under the Commissioner of Oaths Act.
In Katse’s petition, the verifying affidavit is duly signed, and the name of Botsile Sepolwane appears on it. This, submitted the defense, must be the name of the person who signed as the commissioner of oaths.
However, the stamp shows that the affidavit was signed at the Central Police Station, HIV and AIDS Resource Center, and the letters ‘sgt’ appear next. The defense argued that it is unclear whether the letters sgt are the initials of the person who signed as Commissioner of Oaths or his/her rank.
The defense also submitted that the confusion is further compounded by the fact that the stamp, as indicated earlier, is written “HIV Resource Center”. This, they said, raises questions as to whether HIV Resource Center is necessarily manned by police officers or by some other officers.
On the basis of the above arguments, Gaborone’s attorney contends that it is unclear if the “verifying affidavit” was sworn before a commissioner of oaths. They maintain that the affidavit does not say so, and go on to urge the court to disregard it and hold that the petition has not been verified on oath and should therefore be dismissed with costs.
Gaborone is the Vice President of Botswana National Front and also the leader of opposition in the Parliament.