Sunday, July 5, 2020

Legally the 2019 general elections are not yet over

Section 65A(12)c of our constitution enjoins the Independent Electoral Commission to ensure that elections are conducted efficiently, properly, freely and fairly. We have of course had elections observer missions which have made positive pronouncements to the effect that our elections have been free and fair. I am not aware of them making any pronouncement that our elections were conducted efficiently and properly.

Ordinarily in order to make a pronouncement on whether the elections were conducted efficiently, properly, freely and fairly one must have a tool or tools that one uses to measure what has happened. The SADC election observer mission used its tool and the EU observer mission likewise did the same. I am not aware of any constitutional provision that sanctions the use of these tools to determine whether the IEC did indeed ensure that our elections were conducted efficiently, properly, freely and fairly.

In terms of Section 65(13) of our constitution the IEC must following completion of elections submit a report on what it did to the Minister responsible for elections.  The question is whether pronouncements that the elections were free and fair by any third party should be taken seriously before the IEC completes its report? In my view pronouncements by SADC and EU observer missions are persuasive but not conclusive, in much the same way that decisions of the South African courts are persuasive in our courts.

In the case of Williams v The State which featured Dr. S. Pilane on behalf of the defendant the court referred to the State Board of Education v Levit (1959) 52 Cal. 2d 441; 343 p 2d 8, at page 19 where the “Supreme Court of California said that it is a well known principle of Constitutional construction that powers given to a particular organ or body by a constitutional provision cannot be conferred by the legislature upon others”

It is our IEC that is given power to conduct elections by our constitution. It is the same IEC that has to ensure that the elections are conducted efficiently, properly, freely and fairly. I submit therefore that pronouncements by third parties are really irrelevant. I might even suggest that technically the government of Botswana cannot embrace any pronouncements by third parties before the IEC produces its report. If the executive makes pronouncements it is violating the above noted principle.

Strange as it may seem the uncertainty on the conclusiveness of our elections arises out of our electoral law. The law allows any aggrieved party to file a petition with the High Court following elections. Quite obviously up and until the petitions before the High Court are concluded there can be no certainty as to the conclusiveness of the elections. The IEC can only produce a final report after completion of the petitions before the courts.

The situation gets even worse when regard is had to Section 87 of the Elections Act as read with Section 117(b)i. Section 87 sets a time limit of 90 days after election results are announced for every candidate to submit a return of expenses to the returning officer. Section 117 then gives an aggrieved person who relies on illegal practice, 21 days after the day on which the return was furnished to the returning officer to file a petition. This means for 90 days plus 21 days there is uncertainty on the sustainability of the outcome of the elections. It is instructive to note that the uncertainty has nothing to do with either the ruling party or the opposition. It is created by our law.

One might even argue that based on what I set out above even though Biggie Butale’s petition was dismissed for failure to place security for costs within 7 days of filing his petition, he still has an opportunity to launch a fresh petition on the basis of the election return, if his original petition did not rely on illegal practice. The same applies to the other petitions before our courts.  If I am correct then we should brace ourselves for an uncertain future for the near term.

Can the opposition file a petition based on failure on the part of the IEC to conduct elections in accordance with the constitution only? Our constitution does not set out what it means by efficient, proper, free and fair elections. The same applies to the Electoral Act. What legal principles will guide our courts in resolving the issue? What would be the remedy that our courts will grant in the event the suit is successful?

In his press conference our president rightly stated that the petitions were are test on our integrity and governance. There are those on the other hand who share his view that there are external actors who work in tandem with some of our people to cause instability. I have a problem with the posture taken by our president in that only a few months ago he took an oath to uphold our constitution and laws. I understood the oath to mean he will uphold all laws of this country. It is therefore in my view wrong for the president to launch veiled threats to those who enjoy rights granted by our laws.

The president even posed the question, and I paraphrase, “why now when our constitution and electoral law have not been changed?” I think he should look to the fourth industrial revolution that he has put forward as one of his tools to lift Botswana to a high income country. Inherent in the fourth industrial revolution is discovery. It is quite possible that in the past our people were not aware of the versatility of our constitution and electoral law, and the opportunities for challenging election results based on the constitution and the electoral law. Nothing should therefore surprise us that there are some within our mist who have realized the opportunities presented by our legal instruments.

There are some who have introduced the concept of patriotism as a tool to determine whether the actions of UDC in launching petitions should be tolerated. There are still others who suggest that the UDC leadership intends on selling Botswana to some external interests. These views should be looked at through the prism of freedom of expression for they cannot dislodge the statutory rights being enjoyed by the petitioners. We must always remember that freedom of expression can be very nice but sometimes it can be very nasty when one is on the receiving end of some unfavourable comment. It is the nature of the beast.

If the IEC has the constitutional mandate to conduct elections can a body such as BOCRA dictate when private radio stations can publish party political commentary such that these private radio stations have to stop publishing political commentary two days before elections? I repeat what I have said before, there is a tendency in this country to treat the constitution as just another parliamentary statute, and this has to stop. Given that it is IEC that has the constitutional mandate to conduct elections I submit that the BOCRA regulation on private radio stations is unconstitutional in that BOCRA has intruded into the arena of the IEC.

Allow me to digress a bit and talk about a subject that that is close to my heart. I find the concept of tribes interesting. We have just celebrated the discovery that modern humans originated somewhere in Makgadikgadi. Can any of our tribes claim to have been there when modern humans evolved? I bet none can. This suggests that tribes are a modern creation. I believe that in the haste to review our constitution we must leave room for the emergence of new tribes. The same applies to bogosi. Who was the kgosi of these human beings? Can any of our dikgosi proof any superior linkage to the first kgosi, if indeed there was one, that any other Motswana can establish? I bet the answer is no. The trouble is we like to fix how far back we want to go depending on whether it is favourable to us or not.

Anyway here’s to wishing you all a merry Christmas and happy new year. Be safe. Nna ke a Bonwapitse. Don’t just go north pass by Bonwapitse, a place of rest.

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Sunday Standard June 28 – 4 July

Digital copy of Sunday Standard issue of June 28 - 4 July, 2020.