Tuesday, April 7, 2020

UDC petitions: Law vs ‘general’ sentiment

The Court of Appeal (CoA) last week dealt a fatal blow to the Umbrella for Democratic Change (UDC) hopes for fresh elections and a possible change of government.

It had been a marathon of court cases following the UDC’s decision to initiate election petitions in respect of at least 15 constituencies, predominantly in the southern part of Botswana.

The petitions led by the UDC president Duma Boko, if successful, would present another opportunity for the opposition coalition to have another go at wrestling power from the ruling Botswana Democratic Party (BDP).

The opposition accused the BDP of rigging the 2019 national elections. The BDP retained power, winning 38 of the total 57 constituencies, followed by the UDC with 15, Botswana Patriotic Front (BPF) three, and Alliance for Progressives (AP) with a single seat.

In the majority of their petitions the UDC accused the ruling party of engaging in ‘corrupt or illegal practices’ in order to win the elections. The coalition cited BDP activist Moemedi Baikalafi as the main witness among several others.

In his petition (which was a reflection of the majority) UDC Leader Boko cited Baikalafi as part of the BDP national campaign team that included party Secretary General Mpho Balopi, BDP Head of Strategy Dr Comma Serema, and Head of Communications Kagelelo Banks Kentse.

Boko’s petition alleged a meeting of BDP leadership at Tsholetsa House where the plan was to “win the elections by all means”. The UDC petitioners alleged collusion between the BDP, Directorate of Intelligence and Security (DIS), and employees of the Independent Electoral Commission (IEC).

Consequently the petitioners called for the High Court to nullify the election results and call for fresh elections in respect of the respective constituencies in question, in line with 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 UDC believed they had a strong case. Addressing a press conference in South Africa early December Boko said they had overwhelming evidence. Forensics for Justice Founder Paul O’Sullivan also gave his version of what transpired in the October 23 elections alleging “massive” elections fraud.

O’Sullvan claimed he had examined the predicted results for the elections and the actual results.  He alleged the seats that were being challenged by the UDC corroborated with what the whistleblowers (Baikalafi and others) have said.

He said there was evidence of fraud, corruption and money-laundering. It was against this “overwhelming” evidence that the UDC believed they had enough to go to trial and overturn the election results.

But the BDP had no time for trial. The ruling party through their lawyers Basimane Bogopa and Busang Manewe raised preliminary points with the High Courts, citing UDC petitioners’ failure to comply with certain requirements of the Electoral Act in relation to election petitions.

Among the points raised, the BDP argued that the UDC Leader and others had failed to tie the BDP candidates to the corrupt and illegal practices as alleged by the petitioners.

They also cited Section 105 (a) of the Electoral Act to support their case. “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,” the ruling party argued.

Another (of several) preliminary point by the BDP pointed to the UDC’s key witness Baikalafi for whom the BDP said the UDC failed to provide verifying affidavits to some of the petitions. The BDP raised at least 9 points in limine against the UDC petitions indicating failure to comply with the requirements of the Electoral Act.

While the UDC through their lawyers raised arguments to the contrary, it was not enough to convince the various panels of judges at both the Gaborone and the Francistown High Court.

The opposition coalition has largely relied on sentiment to support their call for trials. A guilt tripping attempt to win over the support of the Courts. They accused the respondents (BDP, IEC) of relying on technicalities to stand in the way of a democratic process. “It is clear that the points in limine have been raised in an effort to prevent the proper ventilation of matters that are of significant importance,” the UDC argued.

Gaborone High Court Judge Michael Leburu expressed the same sentiment in his minority judgement back in December 2019.

“It is in the interest of justice that the triable issues raised in the petitions be referred to trial, in order to test the veracity or otherwise of the said allegations,” Leburu said.

He felt the UDC petitioners had made all the necessary averments to sustain a cause of action. “I hold that failure to serve, a written notice of presentation of the petitions, only, is not fatal to the said petitions.” 

The majority rulings in both Francistown and Gaborone dismissed the petitions on grounds of non-compliance.

In an attempt to influence the decision of the CoA the UDC again played the sentimental card. The respondents (BDP and IEC) had again raised preliminary points to prevent the CoA from hearing the merits of the appeal.

The BDP challenged the Court of Appeal’s jurisdiction to entertain the appeals by the UDC.The BDP said no appellate court has an inherent jurisdiction to take appeals from judgments and orders of a lower court.

But the UDC had a different view. The coalition’s lawyers Dick Bayford (Bayford & Associates), Boingotlo Toteng (Toteng & Company), Advocate Dirk Vetten (SA), Mboki Chilisa (Collins Chilisa Consultants), and Advocate Alexander Freund (SA) argued that because the petitions were declared a nullity, the High Court had not determined the question of whether the election is valid as contemplated in Section 69(1) of the Constitution. The five member panel of the CoA led by Judge President Ian Kirby however ruled in favour of the BDP, IEC. “The Court of Appeal has no jurisdiction to entertain these appeals,” Kirby pronounced. The appeals were dismissed with costs.

In their Court papers and subsequent interviews the UDC have consistently based their arguments on emotional blackmail, calling for democratic “justice” as opposed to adherence to Electoral Act requirements.

“The Court has a high constitutional duty to protect the integrity of the democratic outcome and to ensure that the issues that have been raised, and appear to have been supported by an insider who is able to blow the whistle on the fraudulent and corrupt activities, are ventilated in Court,” the UDC have said.

Subsequent to their loss at the CoA the coalition decided to withdraw the only parliamentary election petition (Ghanzi North) that had been granted passage to trial by the High Court. “Our client has decided to withdraw his petition for political reasons,” Noah Salakae’s lawyer Bongotlo Toteng told the Gaborone High Court on Thursday, January 30, 2020 following the dismissal of the 14 petition appeals the previous day. It remains unclear what steps the UDC will take next. 

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