Section 67 of our constitution gives persons who are citizens of Botswana, and who have attained the age of 18 years, to make an application at such time and in such manner as may be prescribed in any law to be registered as a voter for purposes of participating in elections of elected members of parliament. This is a rather innocent sounding proposition until you have regard to the provisions of the Electoral Act, Cap 02:09.
There are several provisions in the Electoral Act dealing with the subject of registration for elections, and none of them provide for the time element as required by the constitution. None of them prescribes the time for application for registration. Instead what parliament has at Section 7 of the Electoral Act is empowered the Independent Electoral Commission to publish a period for general registration.
This may seem to be a perfectly sound provision because in terms of the constitution the Independent Electoral Commission is responsible for the conduct and supervision of elections and ensuring that elections are conducted efficiently, properly, freely and fairly amongst its other responsibilities, but I submit that it is not lawful. When regard is had to the fact that Botswana is a constitutional democracy where the constitution ranks supreme to parliament, it becomes clear that parliament cannot delegate its law making power to another body. By failing to prescribe the time for application for registration and instead empowering the IEC to publish a period for registration parliament has failed to discharge its law making responsibility.
To compound matters the Electoral Act makes provision for registration outside a general registration period at Section 8(1) to be carried out at the office of the principal registration officer of each constituency. This section does not make any provision that empowers the Independent Electoral Commission to appoint a period for what the side notes calls supplementary registration of voters. Effectively by fixing a period for supplementary registration the IEC is acting unlawfully. Section 8(2) of the Electoral Act makes provision for the District Commissioner to register voters whenever he or she visits any part of his or her district.
I am not aware of ever hearing that this particular mode of registration has been published and used. Again there is no provision for setting a period for such registration in this part of the Electoral Act. Only Section 9(2) dealing with registration of non-resident citizens assumes that a period for registration is appointed under Section 7 and 8. It must be noted that the assumption of appointment of a period of registration under Section 8 has no legal basis for Section 8 is silent on such a subject. Section 10 (4) talks about the making of an application for registration being made at any time other than a general registration period or when the Secretary to the IEC has not appointed other places for registration under Section 8.
Application for registration under Section 10(4) only requires the registration officer to determine whether the applicant is entitled to registration in respect of that polling station. This section does not set a time limit for registration. The application need only be made outside the general registration period. Interrogation of the above provisions of the Electoral Act is important for various reasons. The IEC has set itself a target of about 1 300 000 voters. It has so far registered nearly 1 000 000 voters.
This suggests a shortfall of nearly 300 000 voters. The start point is to ask how realistic this target was bearing in mind the failure to use all avenues for registration as demonstrated above. The second point is to consider the efficacy and accuracy of actual numbers registered when regard is had to time and period limitations that are unlawful, that the IEC imposed on potential registrants. The absence of time and period constraints on supplementary registration and registration by the District Commissioner in the Electoral Act suggest that we in law are supposed to have continuous registration of voters. What has happened is that the IEC has effectively disenfranchised potential voters because the IEC only has to produce an electoral roll after the issuing of a writ of elections.
In fact in terms of Section 12(3) of the Electoral Act the Secretary to the IEC is required to prepare a voters roll after 31 December of each year. This suggests that there is no reason to stop application for registration before 31 December. The question of lawfulness of registration becomes relevant also when regard is had to any referendum that may take place after the general elections. Nearly all political parties running for the coming elections have pronounced that they intend to review or overhaul the constitution of Botswana. There are certain provisions of our constitution that require that a referendum.
Those qualified to vote in a referendum are those that are qualified to vote in the election of elected members of parliament. By restricting the avenues and time for application for registration a significant number of eligible registrants will be denied the right to participate in any referendum that may take place after the general elections. A look at the provisions of the Electoral Act suggests that the drafter of the legislation was quite conscious of the constitutional limitations that obtain over the Electoral Act. In fact it looks as if the Electoral Act was drafted by two individuals holding different views. The drafter of Section 7 of the Electoral Act quite clearly knew the definition of time in the Interpretation Act which restricts time to “Botswana standard time.
The use of time in the Electoral Act would have meant that parliament had to say something like “applications for registration as a voter should be made on or before 1630hrs” The drafter elected to read the word “time” in the constitution as “period” Even if we substitute the word “time” with the word “period” it is still parliament that is obliged to prescribe such period not the IEC. There is no way that publication of a period for registration in the Gazette can be deemed to be “prescribing a time or period for application for registration in a law” The drafter, at of Section 8 of the Electoral Act, dealing with supplementary voter registration, now felt compelled to abide by the constitution and therefore left out any reference to giving the Secretary to the IEC power to set time for application for registration for the drafter was conscious of the fact that parliament was supposed to prescribe the time in a law. The drafter at Section 10(4) of the Electoral Act uses “time” in a different sense, different from “time” as defined in the Interpretation Act.
In this instance the drafter uses the word “time” in the sense of “period” thereby effectively trying to cure the breach that occurred at Section 7 of the Electoral Act. It is almost as if the drafter is trying to use supplementary registration to compensate for the unconstitutionality of Section 7 of the Electoral Act. The error in the drafters mechanism to compensate for the constitutional breach lies is failing to realize that she or he has no control over how the IEC and the Secretary to the IEC would use the provisions of the Electoral Act. Both the IEC and the Secretary to the IEC taking the lead from Section 7 assume that they have power to set the period for general and supplementary registration and thereby render the drafters mechanism useless.
It is instructive to note that the IEC Chairman is and has always in accordance with the constitution been a sitting judge of the High Court. Those arguing from the fallacy of authority will wonder how what I set out above is correct if a judge of the High Court was Chairman of the IEC. It must be borne in mind that for some reason the constitution makes the registration of voters a function of the Secretary to the IEC and not the IEC. The IEC only directs and supervises the Secretary to the IEC.
We are dealing with question of how deeply we believe in participatory democracy and rule of law. Are we happy with a situation where registration of voters in undertaken in a fashion that results in some potential voters not being able to register because we have misunderstood our electoral law or do we take a pause and do the right thing? We must also bear in mind that if I am right then the legitimacy of our elections comes into question, and there is room for the unregistered not to accept being governed by people who are elected in a manner that is unlawful for it has disenfranchised them. They will be joined by those who positively took a conscious decision not to register and we will not be able to distinguish between the two.
The best option is to postpone elections, and give the eligible an opportunity to register to vote. I know that all political parties and their potential voters are smelling blood, and have no time for legal niceties, but as a country we cannot choose when and when not to abide by the law. We cannot ask potential voters why they did not register in the two periods for they can ask us why we elected to use only these two periods instead of the full array of registration avenues. What is our answer?
