Tuesday, July 7, 2020

Politics is a numbers game, but elections are a rules game

We have heard politicians say that politics is a numbers game. This statement can be misleading. Given the centrality of elections to our politics it is not prudent to focus too much on the numbers, and to ignore the rules of the elections. In my view the UDC leadership focused too much on the numbers game, and paid little attention to the rules of the elections.

I got the impression that the UDC and the opposition leadership generally does not seem to appreciate what is at stake in elections. In a country such as Botswana where the annual government budget is over P50 Billion, elections are about control of a minimum P250 Billion over five years. Control over this huge amount of money gives you power to implement your vision for the country. Therefore elections are not about which manifesto is better than the other, they are about power to achieve.

Imagine a situation where you invest P10 Million in campaigning for control of the P250 billion and failing to invest P100 000.00 in setting out a process for disputing elections. A serious political leader and his organization seeking control of P250 Billion will invest funds in ascertaining the risks and also in acquiring knowledge of the rules of the elections game. 

What I am driving at is that even though I have in the past argued that the High Court was wrong to dismiss the UDC petitions, the UDC itself gave birth to the possibility of being dismissed by the High Court without the court going into the merits of the cases. A friend of mine gave me a copy of the Court of Appeal decision in Dipate v Mmusi, a 1990 decision where the Court of Appeal held that it did not have jurisdiction to entertain appeals on election petitions from the High Court. I believe Rre Dipate was a member of the Botswana National Front and even stood for elections in 2014 as a UDC candidate. Surely with the benefit of institutional memory the UDC should have picked up that in terms of our electoral rules they had only one shot to have their cases heard on their merits, and that is to avoid enabling the raising of points in limine.

The Kono v Lekgari decision also involved members of the BNF. No matter how one differed with the Court of Appeal in Kono v Lekgari a prudent leadership would not have taken the risk of being dismissed on points in limine without their cases being heard on the merits. In my view the members of the UDC have every right to ask their leadership why it took the risk to allow BDP to raise the points in limine in the face of previous decisions of the Court of Appeal?

It is instructive to note that within UDC are veterans of the BNF who are supposedly well versed on the ideological heritage of the BNF and who even took position at variance with the current leadership of the BNF/UDC. Amongst these are lawyers who I believe were involved in the Dipate v Mmusi case and also in Kono v Lekgari. Were they only focused on the numbers game also and therefore failed to prepare the UDC as regards the elections rules game? Or were they marginalized to such an extent that they withheld their knowledge?

It is all very well to accuse our courts of denying the UDC an opportunity to present their cases on their merits, but for me it is UDC that stabbed itself in the back through failure to appreciate the risks presented by the rules governing our elections. The UDC was not denied access to the courts, they failed to protect the value of that access by creating an opportunity to have the BDP raise points in limine, that required the courts to accommodate the UDC in the face of prior decisions of our courts. No person who is serious about state power can open their attempt to such a threat. It only took the UDC to invest a little bit on the rules portion of elections. There are plenty young lawyers they could have paid P25 000.00 to set out what preliminary information is needed to avoid all the points in limine that could be raised. 

The UDC spent a lot of money on the numbers game, and was even divided on its approach to the numbers game. We even had people open themselves to attack on contradictions in pursuit of the numbers game. We had members endorse the BDP in reaction to the methods deployed in pursuit of numbers. One may even suggest that the UDC took really painful blows which can be traced to UDC itself. It is UDC that took the decision to pursue numbers, and it is UDC that decided not to invest in the election rules game. It is UDC that failed to tap into its institutional memory.

There is nothing wrong with advocating for change of our constitution and electoral law but we must be honest and rational in so doing. If the BDP succeeded on points in limine that are easily avoidable, should we change the law on the basis that one party to litigation failed to exercise a little bit of quality control, and thereby exposed themselves to having their cases dismissed without getting into the merits?

One might even wonder why a person who wants to expose the truth risks such efforts being aborted on the basis that they have not followed procedure. If you really want to expose the truth you will protect any and every opportunity you get to expose the truth. Otherwise there is in my view no need to bother people that you have the truth and are not being allowed to expose the truth. What have you done to protect the opportunity to expose the truth?

Our holding of elections every five years may have dulled us into forgetting that elections are not a natural feature of our history as a people. Prior to the creation of the republic ordinary Batswana did not have any right to elect their leadership. Elections in Botswana are a creation of statute and are also governed by statute. We hold and accept that the courts interpret our statues, and surely where they have done so we must, until they change course, order our affairs in accordance with what they say the law is. 

Even though I hold the view that UDC is the author of its failings at court, I respectfully disagree with the Court of Appeal position that it does not have jurisdiction to entertain appeals from the High Court as regards election petitions.  I have read the Dipate v Mmusi decision and in my view it is defective in some fundamental respects.

Section 69(1) of the constitution gives the High Court jurisdiction to determine whether a person has been validly elected as an elected member of the National Assembly or whether there is a vacancy. Section 106 of constitution creates a right to “appeal any decision of the High Court which involves interpretation of the constitution, other than a decision of the High Court under Section 69(1)”.  It is clear to me that Section 106 of the constitution has nothing to do with limitation of jurisdictional power but rather with creation of the right of appeal. These are two very distinct issues. This goes not to jurisdiction but to limitation of the right of appeal. It may therefore in my view be correct for the Court of Appeal to state that the petitioner has no right to appeal, but it is in my humble view wrong to talk about the Court not having jurisdiction. One may of course say the result is the same but that is not how the courts are supposed to operate.

Within Section 106 of the constitution are the words “a decision of the High Court that involves the interpretation of this constitution”. These words are followed by a comma and the words “other than a decision of the High Court under section 69(1) of this constitution” It is a fundamental principle of interpretation of statutes that every word in a statute must be given meaning within the context of the statute as a whole. 

It is instructive to note that Section 105 of the constitution empowers a lower court and any litigant at that court to refer any question of interpretation of the constitution to the High Court. There is no reference to appeal from the High Court to the Court of Appeal where the High Court acts in terms Section 105. The right of appeal is created at Section 106 of the constitution. It is clear that the words “involves interpretation of the constitution” cannot be separated from the reference to Section 69 of the constitution in Section 106 of the constitution.

The Court of Appeal in Dipate v Mmusi having rejected a narrow approach as to where the words “interpretation of the constitution” apply then ignored the words in a manner that renders the section to read “An appeal shall lie as of right to the Court of Appeal from any decision of the High Court, other than a decision of the High Court under Section 69(1) of this Constitution” Effectively the Court of Appeal changes the constitution, a power it does not have. It fell into this error by assuming there was a jurisdictional question before it when there was none.

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