28 Aug 2019

The High Court has reserved for tomorrow judgement in the case in which Botswana Movement for Democracy (BMD) is challenging its expulsion from the Umbrella for Democratic Change (UDC).

The three-judge panel of justices Tshepo Motswagole, Tebogo Tau and Keborapele Moesi sitting in Gaborone on Tuesday made the announcement after receiving submissions from representatives of both parties.

In dispute is the October 2018 decision by the UDC National Executive Committee (NEC) to expel BMD from the coalition of four political parties - Botswana National Front (BNF), Botswana Congress Party (BCP), Botswana Peoples Party (BPP) and BMD.

Advocate Alex Freud of the Johannesburg bar, representing BMD, questioned the legality of the body that took the decision to expel BMD, the UDC NEC, saying it should have been elected into office by a congress involving delegates from member parties as stipulated by the UDC constitution, which never happened.

He said NEC’s legitimacy was further compromised by the presence of the BCP in the decision-making body when proper legal steps were not followed in the party’s admission into the coalition.

He drew the court’s attention to a letter BPP wrote to the Registrar of Societies in 2017 to the effect that due process had not been followed in BCP’s admission since a Memorandum of Agreement had not been signed by all parties.
Advocate Freud further said the meeting that took the decision to expel BMD did not form a quorum, adding that even if the NEC’s legal standing as a decision-making body was ignored, the lack of quorum made the decision invalid.

BMD, he said, was neither  notified of the 25 September 2018 meeting, which suspended it from UDC nor the 24 October 2018 one that expelled it in contravention of the constitutional provision, prescribing that every member party be represented in the NEC as per clause 13.5.1 of the UDC constitution.

It was therefore a suspension and expulsion without due process since BMD had not been notified on time, the details of the complaint against them had not been provided and they were not given the right to reply before decisions against them were taken, he said.

The UDC defence, also led by South African attorneys, advocates Paul Kennedy and Tembeka Ngcukaitobi, urged the court not to follow a strictly legalistic approach in solving what they termed a political problem.

Advocate Kennedy cited cases where judges called for flexibility in interpreting political party constitutions since the courts would otherwise be used by disgruntled members to settle political scores.

“What has been politically broken cannot be legally fixed,” Advocate Ncukaitobi added.

The respondents stated that on March 4, 2013, UDC contracting parties agreed that the president, secretary general and a third representative from each member party would constitute an interim NEC consistent with Article 28 of the party constitution providing for such a structure to lead the party until a national congress elected a national executive into office.
In the absence of a national congress in the six years since 2013, the interim NEC remained a genuine structure leading the umbrella, they argued.

They said it was agreed that the BNF leader would be president of UDC ahead of the 2014 general elections and that since then, no change had been made.

The UDC legal team pointed out that when BMD internal squabbles became pronounced in 2017 and were referred to the UDC NEC for mediation, BMD leader Advocate Sydney Pilane, in his correspondence, referred to the umbrella leadership, which included BCP, as a NEC.

At one point Advocate Pilane was quoted in the press admitting that the BCP was now a member of the umbrella body, they said.

Advocate Ncukaitoi said when complaints were raised against Advocate Pilane on his social media comments about former president Lieutenant General Dr Seretse Khama Ian Khama’s farewell gifts, which contradicted the position taken by UDC president Advocate Duma Boko, Advocate Pilane once more corresponded with the NEC showing that he recognised the body.

After the BMD split, which resulted in the birth of Alliance for Progressives (AP), BMD is said to have continued to act in a manner deemed to cause UDC political embarrassment including their conduct ahead of the Moshupa by-election UDC loss and statements made by Advocate Pilane, considered to be provocative.

The UDC leadership, according to Advocate Ncukaitoi, first called the BMD leadership for a hearing and made them aware of the allegations against them and only later decided to suspend the party, giving them time to respond to the charges before an expulsion decision was made on October 24, 2018.

Advocate Ncukaitoi said the decision to expel BMD was taken by the ‘right structure, following due process, for the right reasons,’ and that the political relationship between the party and UDC had broken down to a point where the two parties should not be forced to work together.

Countering the UDC arguments, Advocate Freud said the court should not make ‘flexible’ considerations, saying courts existed to ensure fairness and adherence to rules and in this case should only carefully gauge if the BMD expulsion was made by a duly constituted structure following due process. Ends