Sunday, May 28, 2023

Mbaakanyi loses petition for a recount in Lobatse

The Botswana Democratic Party candidate for Lobatse and former Specially Elected Member of Parliament, Moggie Mbaakanyi, last week lost a petition in which she was seeking the court to order and supervise a ballot recount in her constituency.

Mbaakanyi lost the constituency to independent Member of Parliament, Nehemiah Modubule.

Lobatse High Court judges Lashkavinder Walia, Ian Kirby and Abednico Tafa dismissed Mbaakanyi’s petition on the grounds that, among other things, none of the orders sought are authorized by the electoral act.

In her petition, Mbaakanyi’s principal prayer was an order that the High Court carry out and oversee a recount of Lobatse constituency ballot papers, and that the outcome of that recount be declared the official result of election for the Lobatse constituency.
Mbaakanyi argued that the verification process and the counting of ballots was improper and irregular, to the extent that errors made could have affected the outcome of the election in Lobatse constituency.

In their joint judgment, the judges said that the limitation of orders permissible on an election petition is deliberate. They said that Parliament has set the bar so high that it will not be easy to upset the result of an election, which was generally free and fair, but during which some mistakes could have been made as will almost invariably be the case .This, they said, is made clear by section 140 of the electoral act, which provides that no election shall be set aside by the High Court by reason of a mistake or non compliance with the provisions of Part VI (elections) and Part VII(polling), if it appears to the court that elections were conducted in accordance with the laid down principles.

They also said it is practice in Botswana that immediately following a general election, parliament is convened, the Members are sworn in and the business of the house commences, such that a successful election petition may cause considerable disruption.

“Further, it is noteworthy that in those countries where judicially supervised recounts are authorized by legislation such as in Canada and New Zealand, they are still conducted by trained electoral staff with the court having only a supervisory role,” said the judges.

In Botswana, judicial recounts are not authorized at all.

While Mbaakanyi filed her petition on 16 November 2009, she only paid the security on 24 November, 2009, as reflected in the high court stamp. This means that security was given beyond the time which it could lawfully be paid.

“Given that, failure to strictly comply with any of the time limits set by the act in relation to election petitions nullifies the petition” they said.

The judges said that no explanation was given for late filing in the papers.
Terence Dambe represented the Independent Electoral Commission while Joba Nnoi represented Modubule.


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