Wednesday, August 5, 2020

Unfazed, Mogalakwe continues fight at Court of Appeal

A 2019 elections petitioner who no longer needs any introduction is going for a third bite of the cherry. Mogalakwe Mogalakwe now wants the Court of Appeal (CoA) to declare that the trial that he was a star witness in “was grossly flawed and unprocedural, irregular, unfair and must be reviewed, quashed and set aside.” He also wants the CoA to either rule that the matter be remitted for retrial for the hearing of two very important witnesses whom he unsuccessfully subpoenaed or that it hear evidence from them itself.

Running on the Alliance for Progressives ticket, Mogalakwe was one-third of council candidature for the Moralane ward in the Shoshong constituency. He ran against Kesebelwang Gaorongwe of the ruling Botswana Democratic Party and Ehutsahetse Mokalake of the Umbrella for Democratic Change. When the votes were counted, Gaorongwe came out tops with 674 votes, followed by Mogalakwe himself with 637votes while Mokalake managed only 72 votes.

Now, as when he first went to the High Court, Mogalakwe maintains that the Independent Electoral Commission (IEC) failed to ensure that the October 23, 2019 election was free and fair as both the constitution and Electoral Act require. The account he retailed to the High Court when giving evidence and one he restates is that contrary to the Electoral Act, a BDP operative called Bajeleng Kaudimba canvassed for votes for Gaorongwe within the polling station; that a thunderstorm interrupted voting and lost time was not compensated; that there was poor lighting in the voting room; that the illiterate and disabled were not given proper assistance; and that there was crowding in the voting room and lack of proper security. Mogalakwe also feels hard done by by the High Court because his request to call witnesses was denied, IEC was allowed to suppress evidence, and that in its misinterpretation of Section 121 of the Act, the High Court placed premium on meeting a deadline than dispensing justice.

The matter has sucked in two government departments which have themselves not been cited but play a crucial role on the margins. The two witnesses that Mogalakwe want to take the stand are Constables Ratanang Gaoakanye and Motshwaraganyi Oratile of the Botswana Police Service. Both were providing security at the Moralane polling station on election day and Mogalakwe contests that they can confirm his version of events. He subpoenaed them as witnesses but the High Court wouldn’t allow them to take the stand. In his court papers, Mogalakwe says that getting these officers to testify on his behalf has been “difficult.” Upon learning that the officers were to testify at the trial, BPS instituted an inquiry that resulted in their testimony being blocked until Patrick Kgoadi, Mogalakwe’s lawyer, made a formal request to the Commissioner of Police.

The other department is that of meteorology which has to say whether or not a thunderstorm swept through Moralane on election day. Mogalakwe says it did but the IEC refutes that and in order to bolster his case, the former got the Department of Meteorology to furnish the court with a weather report for the day in question. The issue of whether or not there was rain is central to the matter, with Mogalakwe arguing that if it can be proven that rain fell, then it would be necessary to compensate for lost time with an extension. He says the following in his court papers: “I was surprised that the Presiding Officer did not extend the time for the time of the storm as she ordered Constable Ratang Gaoakanye, another appointee of the [IEC] to close the gates at 7 pm. on the dot. I approached the said Presiding Officer and asked her to extend as there had been serious disruption, but she refused. No wonder she denied in the papers that there was no rainfall, she was never called as a witness. The adverse weather lasted for about 45 minutes. The IEC was ill prepared for such eventuality.”

The latter argument implies an obvious point: the presiding officer’s decision to not extend the voting time and close the gate, prevented people from voting and some of those people would have voted for Mogalakwe and made him the winner. Mogalakwe is as aggrieved that the presiding officer was herself not been called to the stand to explain some contentious plot points. He argues that that was not done “because she had contradicted herself in the papers before the court.”

Section 121 of the Electoral Act says that elections petitions must be disposed of within 90 days from the date of voting – which explains why the High Court had to burn the midnight oil to dispose of Mogalakwe’s case. Mogalakwe now wants the CoA to consider the argument that in putting his petition on the clock, the court operated mechanistically and at the expense of taking its time to ensure that the proceedings took as much time as was necessary to ensure that justice was served.

“Consequently, in my view, the Court subjected itself under severe pressure to consider volumes of evidence from testimonies of as many as 12 witnesses which took close to two weeks of trial, with interlocutory applications and one brought by the Court on its own, and all within an hour and 30 minutes, to pronounce an ex tempore decision which was delivered towards midnight that day dismissing my petition,” the veteran opposition politician says in his papers.

He adds that the rush to meet the deadline cost him four witnesses because the court was concerned that if he called more witnesses, the respondents would also be forced to call their own witnesses in rebuttal and that the testimony of all those witnesses would have taken up more time than was left for the trial to end.

“There was thus no objective assessment as to the probity of the evidence,” Mogalakwe argues.

During the High Court trial, his lawyer, Kgoadi argued, and will again if the CoA indulges his client’s application, that the courts still retain jurisdiction after the 90th day.

Mogalakwe’s application comes under unusual circumstances: after the period allowed for appeal has long lapsed and he has had to make an application for condonation for filing his appeal. The main reason that he gives for not filing his appeal on time is that the national lockdown and consequent movement restriction between zones made it impossible for him to have face-to-face communication with his lawyer and senior party officials. 

The main remedy that he seeks is that “the appeal be allowed and the court order a re-run of the elections.”

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Sunday Standard August 2 – 8

Digital copy of Sunday Standard issue of August 2 - 8, 2020.