The Manual Workers Union under the leadership of Johnson Motswarakgole has joined the fray in challenging the use of the Electronic Voting Machine (EVMs) in the upcoming 2019 general elections.
The decision by the union to launch a parallel legal action is said to have put the Independent Electoral Commission (IEC) in an agonizing position as this is impacting negatively on its preparations for the upcoming elections.
The Commission needs sufficient time to procure the machines and procurement of ballot papers. Sunday Standard has unearthed information showing that during the current nationwide consultations by its officials, it has expressed concern that court cases which have been launched by BCP and Manual Workers Union are affecting their preparations for the general elections.
In papers before the court, the Union states that the use of Electronic Voting Machine (EVM) as permitted by the amendment Act are not immune from hacking, tampering and can result in the voting machine purporting to disclose voting outcomes that do not truly reflect the voters actually cast.
The Speaker of the National Assembly, Minister of Presidential Affairs and Public Administration are cited as defendants and they have since indicated their intention to defend and oppose the matter while the Independent Electoral Commission is waiting for the outcome of the court case.
Botswana Congress Party (BCP) is also challenging the same matter and it is still pending before the High Court.
Motswarakgole’s arguments are similar to those from BCP because all the parties’ main contention is that the machines are not immune from hacking.
He said the failure of the Amendment act to require a voting machine to have a voter verifiable paper audit trail (VVPAT) facility and to afford candidates, voting agents and/or counting agents legal rights to access and utilization of any VVAPT facility permits elections results which are unverifiable and accordingly invalid.
”In the result all those provisions of the Electoral Act as amended by the Amendment Act which permit the use of voting machines and/or which the use thereof are unconstitutional and invalid,” said Motswarakgole.
He said Section 32(3) requires every poll to be taken at a constituency in a national election to be conducted by ballot adding that the current Amendment Act does not utilize ballots as contemplated in the constitution.
Motswarakgole said the Amendment Act does not require voting machines to have VVPAT and on a proper interpretation such ballot must be a ballot of a nature contemplated in section 48 of the electoral Act as read with section 53 of the said act.
The Veteran Union leader through his attorney Mboki Chilisa observed that the electronic ballot referred to in section 54 A (2) of the Act pursuant to the Amendment is not a ballot.
The plaintiff (Motswarakgolo) and his union are asking the court to strike down as unconstitutional and invalid all the provisions in the Amendment Act, which permit or regulate the use of the machine.
Motshwarakgolo said prior to the amendment of the Electoral Amendment Act 2016(cap 02:09), counting of votes should be done through the presence of any candidates or counting agents thereby making the process of counting and results transparent and verifiable. But with the EVM, he said, everything is going to be questionable and making election not to be free and fair.
Motshwarakgole and Manual Workers Union are represented by Mboki Chilisa of Collins Chilisa Consultants while the state is represented by Attorney General Chambers.