18 Dec 2019

 The Gaborone High Court will on December 24 deliver the fate of the election petitions by some members of the Umbrella for Democratic (UDC). The ruling follows the submissions by BDP lawyers, who have argued for the petitions to be nullified as they were lacking some substantive details. 

A panel of three judges comprising of Michael Leburu, Mercy Garekwe and Godfrey Radijeng set the ruling date on December 17 after hearing preliminary debates from both the petitioners and respondents’ attorneys in relation to the contents of the election results petitions. A team of attorneys representing the BDP, who appeared in the petitions as the second respondent comprising of Mr Basimane Bogopa, Ms Bonolo Itumeleng and Mr Busang Manewe, have asked the court to declare the UDC election petitions null and void.  

Introducing the second respondents’ preliminary points of argument, Mr Bogopa contended that the first point in Limine (point for determination) was that the petitioners had failed in their pitch as it was solely dependent on the alleged corrupt and illegal practices purported to have been committed by the BDP in solidarity with the Directorate of Intelligence and Security Services (DISS). Mr Manewe argued that if the petitioners relied on the commission of corruption and illegal practices to void the election results, they must fully establish that such unlawful practices were done by the election observers and polling agents with the abet of the second respondent. 

“When you go through the petitions, one cannot establish any form of evidence demonstrating that the alleged unlawful acts were done by election agents appointed by the second respondents,” said Mr Manewe. He said it was not clear whether the polling agents of election agents committed the alleged corrupt and illegal practices, adding ‘without such averment, such a petition must be dismissed as a petition’s fall or survival was determined by the filed documents. 

As per the provisions of Section 140 of the Electoral Act, ‘No election shall be set aside by the High Court by reason of any mistake or non-compliance with the provisions of Part VI or Part VII, if it appears to the court that the election was conducted in accordance with the principles laid down in Part VI of Part VII and that such mistake or non-compliance did not affect the result of the election.’ 

Mr Bogopa therefore submitted that an election petition must be done well, bearing in mind the repercussions it may have on the disputed election outcome, adding that a petition must carry all the necessary information to allow the respondents to effectively deliberate on it.Therefore, he said there was no room for amendments or provision of additional information as the 30 days provided for one to petition an election result had elapsed. 

“Having found that they had not provided all the information required in a petition, it then calls for a withdrawal. They cannot apply for an amendment now; we are supposed to be preparing for a trial not submitting petitions. Noncompliance subjected the petitions to nullity and the court will not entertain any proposed amendments,” he said.

In a reference to an election petition by Advocate Duma Boko against the IEC (first respondent) and Ms Annah Mokgethi (second respondent), who was contending the election results of Gaborone Bonnington North constituency, Mr  Bogopa said the petition did not state that the agents of Ms Mokgethi were aware of the alleged illegal practices. It is just an allegation that the BDP, DIS and IEC made a scheme to influence the election results, he said.  

He said the petitions do not substantiate the provisions of section 105 (a) of the Electoral Act. 

Mr Bogopa also added that the petitioners alleged that payments were made to registration agents, to register people who never presented themselves at prescribed registration points. Still on the preliminary points Ms Itumeleng argued that the petitioner must be meticulous in preparing his petition.  She also argued that some petitions were found to be lacking verifying affidavits. 

Meanwhile, the team of lawyers representing the petitioners led by Senior Counsel Jonathan Vetten has appealed to the court not to be intimidated by the second respondents as the BDP wanted to use any trick they can master to submerge the petitioners’ intentions. Advocate Vetten said the court was at the centre of contrasting presentations made by two parallel worlds. 

One world believes that they have legitimate complaints to be examined by a trial, it was a story to tell to the world, but the BDP, the opposing world, has intention to plunge their intentions, said Mr Vetten. 

He said the powers, exceptions and jurisdictions of the Electoral Act must guide the court in making its determination. He said the process of an election was a sacred. “In light of achieving freedom of fairness, the game must be guided by the law and ensure that democracy reigns. Take it away and the whole system collapses,” said Advocate Vetten. 

He said the role of the court was to determine on whether the rule of law was followed, hence the petitioners went to court to tell their story.He said the court must apply its expertise as provided by the law to establish as to whether a person was duly elected as provided by section 116 of the Electoral Act. 

He said the act provides for a person to complain about a corrupt act, illegal act, irregularity or by reasons of any other cause whatsoever, adding that the respondent in the petitions must be those who were vying for the same position. Mr Vetten also indicated the need for the petition to be accorded the opportunity to go for trial, so that witnesses could be summoned and assist in determining as to whether there was an undue election as provided for under section 121 (I) of the Electoral Act.  ENDS