President Ian Khama has entered the Francistown West by-election saga on behalf of the Botswana Democratic Party (BDP) leadership by slapping the Independent Electoral Commission (IEC) with a lawsuit.
The legal action challenges the IEC’s decision to ban the BDP from participating in the Francistown West by-election.
Khama has instructed BDP lawyers Collins Newman and Company to take IEC head-on.
The ruling party wants the High Court to compel IEC chief, Gabriel Seeletso, to register the controversial victor of its disputed primaries, Ignatius Moswaane, as the party’s parliamentary candidate for the upcoming by-election to be held in two weeks time.
The case has been filed before Justice Tshepo Motswagole with the IEC cited as the first respondent while veteran politician Whyte Marobela is listed as the second respondent.
The BDP has accused the IEC of misinterpreting a temporary court order issued last week by Justice Motswagole.
The High Court had ruled that the BDP should not submit Moswaane’s name to the IEC pending the resolution of a complaint launched by Marobela on the outcome of the BDP primaries.
Further, the party has been directed not to nominate anyone to run for the Francistown by-election until Marobela’s appeal is heard by the party central committee.
According to the filed court documents, Marobela has no case because his appeal on the primaries was heard and dismissed by the central committee on November 1, which was nomination day.
The BDP argues that officials of the IEC had no ground to refuse to register Moswaane during the nomination process because the court order had been complied with.
The application annexes the central committee‘s letter dismissing Marobela’s appeal. The letter further emphasis that the central committee’s decision is binding and final.
Not only is the BDP stating that it complied with the court order but the party also contends that the IEC misinterpreted the court order.
“As appears from the terms of the court order, the Court order did not prohibit the IEC from accepting the nomination and was not binding on the IEC…,” states the party’s acting executive secretary, Lee Lesetedi, in a sworn court statement.
The party argues that the returning officer in Francistown had no business questioning Moswaane and making demands because in terms of the Act a returning officer ‘is duty bound to receive nomination papers tendered to him or her’.
It further adds that Moswaane complied with all the requirements making him eligible for nomination. The party says that the refusal to register Moswaane should be set aside.
The party is of the view the IEC was not constrained by the court order and it is by law obliged to receive and accept nominations.
“…even assuming the returning officer was empowered not to accept a nomination duly tendered to him or her in circumstances where a court order ordered her not to, in the this instance the court order did not interdict the IEC from accepting the nomination nor was it binding on the IEC which was not a party to or subject of the court orders. The court order only went as far as to interdict the BDP and Moswaane from submitting his name to the IEC for nomination as a candidate, and then only pending finalisation of the appeal by Mr Moswaane lodged with the BDP,” states Lesetedi.
The BDP states that it wants the court to order the IEC to accept Moswaane’s nomination.
The case is scheduled to be heard tomorrow.