KANG: The sun rose from the east. It steadily spanned across the scattered white clouds against the blue expanse. Earlier in the week, responding to a question of how confident he was with victory, the party president and Botswana’s fifth President Mokgweetsi Masisi said in as much as the sun rises from the east and sets in the west, his triumph was guaranteed. Indeed, the morning’s sunrise beckoned joy for him after the twilight hours of the previous night pronounced victory when three high court justices; Terrence Rannowane, Abednico Tafa and Godfrey Radijeng unanimously agreed he had no challenger to the presidency of the Botswana Democratic Party.
“The applicant has no locus standi to bring this this matter before this court. Furthermore, the applicant’s urgency is self-created as she has always known about the rules governing the conduct of the elections, but slept on her rights until the eleventh hour to disrupt a pre-planned congress from proceeding. This court is adjourned,” an annoyed Chief Justice Rannowane stated.
The news reached President Masisi in the cosy comfort of his presidential suite in a land strewn with shrubs across a parched land of the Kalahari Desert that does not provide enough shade for the multitude that descended on the south-western African village of Kang the previous day, anticipating a clash of the titans on Friday, had it not been that the application seized up everybody’s attention and kept the congress in limbo despite its advance notice circulated widely to have whetted the appetite of Pelonomi Venson-Moitoi as the challenger since February 20th. Kang is originally a question in the vernacular, meaning ‘how’, but it is not clear from whence the village earned its name. The two parties ventilated their grievances in the court of law in which several prayers were to be considered for a final determination that would stay the congress from proceeding on the 05th April, Venson-Moitoi contained her ardent beliefs in the founding affidavit.
A fierce, lone jogger was returning from her morning routine on the side of the road into the village, cutting out a familiar figure of a cosmopolitan named Tebelelo Seretse. Like a thousand others who took the village by storm in this well-laid back settlement, she also went to bed too late on account of waiting for the verdict that could turn the fortunes of the behemoth called the BDP, which had conducted its elections with ease for decades. In particular, for the last decade, the BDP has consistently used the same piece of legal framework that was at the centre of debate as to its applicability to provide direction on how elections were to run. The digital divide had been bridged by the online streaming of the court proceedings and instantaneous posting of updates on individual and groups’ Facebook pages for interested parties in every corner of the universe. Pelonomi Venson-Moitoi had reached out to the court to aid her by way of interpreting the constitution of the party to agree with her that it did not provide adequate rules and regulations on running credible, free, fair and open elections. Resulting from this recognition should be the court’s direction that the party official should promulgate new rules and regulations before a presidential race could be launched in which she would participate. Furthermore, she submitted that her main grief was the injury occasioned by the letter dated 02nd April from the returning officer of the party, who did not admit 26 of the 50-listed members of the party in good standing, who sponsored her presidential bid. The party’s secretary-general, Mpho Balopi replied that the 26 councillors did not qualify as delegates. This bone of contention forced her to run to court.
Punching holes in the application was the lead counsel, Busang Manewe who told the court that Venson-Moitoi had invested a great deal of effort to demonstrate that she was a long-time activist of the political party who had contested for leadership posts before and therefore, familiar with the processes and procedures of ventilating on issues of disputes.
“Article 13.6 provides remedies on her rights as a member rather than to resort to halting the progress of the congress at the eleventh hour. The court must not interfere with political rules and asking the court to direct for the promulgation of the rules that are already in existence is akin to asking the court to solve a political issue inside a political organisation,” Manewe roared.
“But that is your attitude that the congress should not be halted. Deal with the fact whether or not she should not qualify to bring the matter before this court,” Justice Tafa interjected.
“The applicant must show that she has the right to protect herself against any injury by approaching the court without first acknowledging that she has joined a voluntary organisation, and that what she exclusively refers to as the constitution, is in fact her contractual relationship between the applicant and the respondent. The applicant is under the impression that she is not having a contract with the voluntary organisation, which she points out in her affidavit in terms of Article 41 to determine her rights to demand the promulgation of rules. This court must bear in mind that the constitution referred to came into force in 2008 and the question is; really, is there a need to come up with new rules? I submit that the constitution is adequate in terms of rules governing elections. We must not lose sight that the case is about the presidential race so the president as an office-bearer is mentioned at Article 28 and is indeed a member of the central committee and the same office of president is mentioned at Article 30, which president shall be elected in terms of Article 29 as appropriate. This methodically demonstrates that the rules are in existence already. The constitution is so loaded like the bible, my lords,” Manewe replied.
The attorney, who showed off his rhetoric prowess, told the court that the confusion as to councillors being accepted as delegates did not have a firm footing. He dismissed the demand for delegates to be replaced with councillors as frivolous and that should the court consider such a request, it had the potential to plunge the entire organisation into chaos and lawlessness. Venson-Moitoi had made up her mind on or about 17 December 2018 to enter the race, traversed the breadth and width of the country canvassing support to challenge the incumbent, and even gave updates of a campaign that showed pretty good chances of success, save for her consistent claims of being tailed by the spooks, whom in her own language, could not deter her from dislodging her opponent.
“Why would someone who has done all this rush to court on the eve of elections? I know the answer and that is because it is tough and hot inside there. She is afraid to lose. Courts are not made for people who run away from contests. Furthermore, she is in the company of an experienced lawyer who would have advised her that from the letter she wrote to the party giving officials an ultimatum by the 28th March if her demands were not met, the applicant should have come to court soonest. But she waited until the eve of elections. The basis upon which she seeks the interdiction of the court is trivial,” Manewe sighed.
As if things had not gotten bad enough, Manewe hit the nail on the coffin harder, when he brought to the attention of the court that it was important for the justices to take note that Venson-Moitoi did not wash her hands clean before seeking justice of the court to circumvent a pre-planned elective congress from going ahead.
“Qualifications are clearly spelt out in the constitution, and that an aspirant presidential candidate must state that she is a citizen by birth or descent, which requirement has been aligned to the provision found in the Republic’s constitution. The applicant has not demonstrated so. Stating that she was a citizen by birth or descent would demonstrate beyond a doubt her locus standi to approach the court. The applicant does not meet the requirement if she could not include the material facts that make her eligible to enter the contest. If you leave out this detail in the founding affidavit, you simply don’t have a leg to stand on and this court can’t entertain your pleas,” Manewe rested his submission.
Painstakingly, the well-spoken and articulate legal hawk that Dick Bayford is fondly remembered to be, he could only muster the courage to beg the court not to be swayed away from the procedural matter that the applicant brought before it, rather than deal with the substantive content that the respondent’s attorney was raising with respect to the eligibility of the contender for the presidency of the party. But the three justices would have none of that as they reminded the applicant’s attorneys that once matters of law have been brought to their attention, it would be irresponsible that they shut their eyes.
“What the respondent’s attorney is saying is asking the question whether or not she has a locus standi in this court. The fact that the secretary-general in his reply did not challenge her eligibility, but limited himself to the disputed 26 people on the list does not take away the point that the applicant’s qualifications for the post she is aspiring to occupy has been raised in this court,” Justice Rannowane emphasised.