23 Feb 2020

The High Court has dismissed Mr Maneke Segootsane’s election petition case.

Reading out the majority Judgment, Justice Itumeleng Segopolo, seconded by Justice Omphemetse Motumise said the case was dismissed on basis that they could not find  adequate grounds to incur all the expense and all the other inconveniences of going back to the polling stations, hiring polling officers, presiding officers and the rest,  causing unnecessary costs when the elections were fair.

He said that although the petitioner maintained that the inclusion of the AP symbol had confused the voters and caused the spoiling of votes thereby, he was not able to show any evidence of such confusion.

He said that instead of proving the confusion he rather contended himself with testifying that a number of voters had told him that they were confused and called none of the voters to testify in order to corroborate  his contention.

Justice Segopolo added that the exhibits derived from the election material during inspection ordered by the court did not bear any averments that the voters were confused by the presence of the particulars of the AP on the ballot paper.

“The voters who purported to vote for the AP alone could have had no doubts in their minds that they intended to vote for the party,” he said.

Justice Segopolo said if anything happened in their minds, they were misled that unbeknownst to them in that a vote to AP was a choice which was not available and that those who voted for AP and other parties at the same time could not be counted as confused.

He highlighted that they looked at whether upon any additional or alternative ground the erroneous inclusion of a non-contesting party on the ballot paper amounted to any irregularity that was sufficiently brave to render the elections null and void from its inception, which in this case it was insufficient.

He said the breach was not fundamental enough to amount to a violation of section 65 (12) (a) of the constitution of Botswana which entailed that the Commission shall be responsible for the conduct and supervision of elections of the elected Members of the National Assembly and members of a local authority, and conduct of a referendum. In particular the election was conducted efficiently, properly, freely and fairly.

Justice Motumise said that a mere reduction in the margin was not an indicator unless other factors acknowledged to exist but unquantifiable, rendered the results uncertain.

He said the court should not in accordance with section 140 of the electoral Act, in applying the fact be astound  not to disturb an election which on the face of it appeared fair and regular.

Section 140 entails that no election shall be set aside by the High Court by reasons 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 or part VII and that such mistake or non-compliance did not affect the result of the election.

However, he said persons who alleged that it was not, had a democratic right to challenge it, stating that such challenges should not be fraudulent, but must be based upon substantive grounds.

Justice Gaolapelwe Ketlogetswe, delivering the dissenting judgement, condemned the Independent Electoral Commission (IEC) for abandoning the Botswana Democratic Party to wrestle ‘the monster of its own creation’.

He said that IEC having been the ones who created and issued the ballot paper, failed to appear before the court and give any evidence whatsoever in its own defense.

The evidence of the petitioner which was before the court, he said, was lacking IEC’s version as to what transpired at the election  whose results he now sought to impugn.

He said that though what the constitution meant about conducting elections properly was not defined, it was also known that the Electoral Act and the Supra referred to elections being conducted in accordance with the principles contained in them.

“These principles relate to valid registration of voters, design of ballot papers by the IEC for election purposes in each constituency or ward, voting procedures, counting and collation of ballots and declaration of the results of the polling,” he said.

He continued to say that what could not be lost sight of in the general scheme of things, however, was that the IEC was a creation of the Constitution and that it wielded enormous powers in regard to the lawful exercise of its mandate, both under the constitution and under the Electoral Act.

He said in the exercise of its powers under the Electoral Act, Section 48(1), the IEC, had been granted unrestricted power to design a ballot paper for use by voters at an election.

“The ballot paper of every person voting at an election shall consist of a ballot paper in a form to be determined by the Commission and having a serial number printed in it.”

Justice Ketlogetswe explained that IEC designed a ballot paper for Kaudwane, Sorilatholo council ward which include the name, abbreviations and symbol of the AP, a political party which was not taking part in the elections for that ward.

He said the questions that arises with that is whether this conduct by the IEC commensurate with the proper conduct of elections.

“I have no doubt in my mind that the IEC, in designing the ballot paper for that ward, did not comply with the electoral Act,” he said.

He went on and said that as Section 44 of the electoral Act also contemplates a situation where the Secretary of the IEC allocates a voting colour and symbol to a candidate.

In his judgment therefore, the placement of a non-candidate on a ballot paper, and allocating a voting colour and symbol to such a non-candidate in the names of Alliance for Progressives was an act of illegality on the part of the IEC and its officers as they exercised a power not authorised by the Electoral Act by ascribing a status candidacy to non-candidate on the ballot paper.

He said that the right to vote which is foundational to every democratic set-up and cannot be inhibited or comprised by a confused electoral process which may contain ghost voters in its voters’ roll or ghosts candidates in its ballot papers.

“A ghost voter would always be intended to distort election results, whilst a ghost candidate, or a non-existent candidate may bamboozle or confuse unsuspecting voters,” he said. ENDS