08 Sep 2019

Court of Appeal will today afternoon deliver a ruling on whether the Botswana Movement for Democracy (BMD) appeal against the recent Gaborone High Court judgement that sanctioned the legality of the BMD expulsion from the Umbrella for Democratic Change (UDC) should be heard as a matter of urgency.

On Friday, after listening to arguments from Advocate Sydney Pilane representing the appellant the BMD as well as Advocate Paul Kennedy, who appeared for the respondents, Duma Boko and the UDC, the appeals court bench comprising Justices Ian Kirby, Isaac Lesetedi and Monametsi Gaongalengwe said they would make a determination on the matter on Monday at 2:30pm.

The BMD asked the court to hear their appeal as a matter of urgency and deliver a judgement by September 20 since the BMD sought to exercise their right to participate in deciding the presidential, parliamentary and council candidates of the UDC in the upcoming general election.

Advocate Pilane pointed out to the court that official submissions for presidential candidates were due to be held in September 21.

He said the BMD should not be denied their right to participate in the process as part of the UDC, since they believed they could successfully present a case that the high court erred in approving of the legality of the October 24, 2018 expulsion of the BMD by the UDC.

Further, the appellants argued that they had always called for the high court case to be expedited, but the respondents had always delayed the process.

Earlier this year, the appellants, Advocate Pilane said, had agreed to a hearing on April the 29 and 30 as allocated by the high court, but the representatives of the respondents indicated their unavailability then.

Thereafter, the high court had suggested a mid June hearing, which the respondents could also not avail themselves to, before eventually August 27 and 28 were agreed upon.

Advocate Pilane accused the respondents of tactically waiting until a date close to the election to avail themselves to the high court in order to deny space for potential appeal if the judgment worked in their favour.

When probed whether it was not too late for the BMD to participate in the election process of the presidential, parliamentary and council candidates of the UDC, Advocate Pilane said the court should deal with legal matters and leave political affairs to be handled by politicians.

He said if the UDC could work with their erstwhile rival, former President Lt Gen Seretse Khama Ian Khama, it was a sign that the BMD could also solve their problems with the UDC overnight.

Meanwhile, representing Boko and the UDC, Advocate Kennedy noted that the BMD was rested their case on prejudice if they were denied participation in the selection of election candidates ahead of the October election.

But he said this could require a new nomination process, which would be cumbersome, given the broken relationship between the UDC and the BMD.

Advocate Kennedy said within the UDC it had been unanimously agreed that the first respondent (Boko) was their presidential candidate and the opposition umbrella body had also fielded prospective candidates for all parliamentary constituencies and council wards.

Since political campaigns were ongoing to launch and market prospective candidates by the UDC, and the BMD had registered their election symbol with the Independent Electoral Commission (IEC) and also campaigned for their own candidates, forcing the two parties to work together at this late stage would confuse voters, Advocate Kennedy argued.

He said by accusing the UDC of a strategy of delay at the high court and being guilty of acting in bad faith, Advocate Pilane, who is also the president of the BMD, was clearly indicating the level of mistrust between the contending parties.

As such, Advocate Kennedy urged the court to consider the balance of probabilities in making a ruling.

These probabilities are whether it would be in the interest of the voting public for the two parties to be forced to work together and possibly create chaos ahead of a general election; or if it was for the public’s good for the two parties to be apart at the election only to grant the BMD their inalienable rights to argue the merits of the legality of the expulsion at a later, less politically sensitive date. ENDS