Most of the Umbrella for Democratic Change (UDC) election petitions may not go to trial due to their failure to comply with the strict Electoral Act requirements.
In their Heads of Argument in response to the elections petitions the Botswana Democratic Party (BDP) have, through their lawyers Bogopa, Manewe, Tobedza & Co, dismissed the majority of the UDC petitions indicating their failure to comply with the Electoral Petitions procedures.
In their arguments the BDP raises various Preliminary Points indicating the UDC’s failure to comply with various sections of the Electoral Act in relation to election petitions.
The UDC President Duma Boko (for instance) in his petition against BDP’s Annah Mokgethi complains of the undue election of the latter and “commission of corrupt and illegal practices by the BDP, Directorate of Intelligence and Security Services (DISS) with the connivance of certain employees of the second respondent (IEC) as shall be fully particularised herein under and prays for the relief set-out.”
As a consequence Boko wants the court to declare the election of Mokgethi null and void.
The BDP however argues that the UDC leader and others have failed to tie the BDP candidates to the corrupt and illegal practices as alleged by the UDC. In their argument the BDP cites Section 105 (a) of the Electoral Act which reads:
“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.”
There is, the BDP argues, a “requirement for specific averment or allegation that the offense was committed by the member himself or herself or by any other of his or her election or polling agents.”
The party argues that if indeed the Court finds there has been corrupt and/or illegal practices committed by anyone other than the candidate and their agents, the remedy available in terms of the Act is a referral for prosecution and not voidance of the election.
Another Preliminary Point by the BDP points to the failure by the UDC to connect the corrupt and illegal practices to various constituencies such as Mochudi East and Gaborone Central.
In Moagi Molebatsi v IEC & Mabuse Pule, the BDP argues, there is no allegation in Molebatsi’s petition that the alleged corrupt and illegal practice complained of occurred and/or were implemented in the Mochudi Constituency. The same goes for Mpho Pheko at Gaborone Central. She, according to the BDP, fails to place the illegal and corrupt practices at Gaborone Central.
Another Preliminary Point by the ruling party points to the UDC’s key witness Moemedi Baikalafi for whom the BDP says UDC failed to provide verifying affidavit for some of the petitions.
The ruling party cites Order 12 Rule 3 (1) of the Rules of the High Court which states “Every petition shall conclude with the form or order prayed and verified upon oath by or on behalf of the petitioner.” The party argues that without the verifying affidavit, the petitions insofar as they relate to the assertions attributed to Baikalafi are a nullity.
“As stated above, this affects the paragraph 14 to 49 of the petitions of Ketlhalefile Motshegwa and Moagi Bright Moelebatsi.”
Another Preliminary Point questions UDC’s Victor Phologolo’s locus standi (right) to challenge an election.
In what has come across as a case of ‘cut and paste’ mistake, Phologolo, who stood for elections in Kanye, has reportedly filed a petition against elections in Tlokweng where he was neither a candidate nor a registered voter.
Section 116 of the Electoral Act provides that a petition complaining of an undue election of a member for any constituency maybe presented to the High Court by (a) a voter in that constituency or (b) any person who was a candidate at election. The BDP have in their Heads of Argument raised at least 9 Preliminary Points against the UDC petitions indicating failures to comply with the requirements of the Electoral Act. Failure to comply with the strict requirements means affected petitions may not go to trial.
