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The Moitoi/BDP judgement that left me guessing!

SHARE   |   Sunday, 14 April 2019   |   By Adam Phetlhe On Sunday
The Moitoi/BDP judgement that left me guessing!

A unanimous judgement between Pelonomi Venson-Moitoi (Applicant) and Botswana Democratic Party (Respondent) was delivered by the Gaborone High Court’s Rannowane CJ, Tafa J and Radijeng J on 5th April 2019. In this Application, the Applicant sought the Court’s intervention in her favour with regard to the ‘rules governing the conduct of the election of the President of the Respondent’ amongst others.’ Determination of this application was based largely on the points in limine raised by the Respondent being: ‘non-joinder of the President of the Respondent; the Applicant has no locus standi with respect of prayer 2.1 and 2.3 of the draft order; urgency is self-created if there is any urgency at all.’ Consequently, the Applicant’s case was dismissed on the Respondent’s points in limine as upheld by the court.

Court judgements by their very nature evoke mixed feelings for the victors and the vanquished respectively. This judgement therefore, is no exception as the vanquished in the person of the Applicant cried foul to the effect that her grounds of lodging this urgent application were not ventilated by the court. Whereas the Applicant’s fundamental grounds of lodging the application could not be ventilated because they were rendered inconsequential by the upheld points in limine, the court referred to the Court of Appeal position that ‘…Courts must be astute not to intrude in the political process by intervening too readily to overturn decisions taken by political bodies in internal elections where such bodies respect clear majority decisions, even in the face of clear irregularities in the process….’ (My emphasis) And really one could ask? People approach courts to seek recourse for clear irregularities for they would have otherwise failed to obtain such recourse from their political bodies, employers and so on. It is accepted that the application did not seek to ‘overturn decisions taken by political bodies in internal elections….’ because no election had occurred. This is validated by the court itself by stating: ‘Even though this is not about elections, we take the view that the principle applies with equal force in this instance.’ But it is common cause that the application sought to prevent an election by a political body from proceeding because in the Applicant’s view, clear irregularities occurred which irregularities would render it a ‘sham’ if you allow me to borrow from the language of the Applicant.    

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I find the position of the Court of Appeal as accepted by the High Court in this instance problematic with regards to the complaints of the Applicant. The purpose of the Applicant in this application was particularly that the decisions of her political party demonstrated clear irregularities that put her at a disadvantage in attempting to campaign let alone finally appearing on the ballot paper. On one front, the High Court agrees that because the Applicant does not have the ‘locus standi with respect to prayer 2.1 and 2.3 of the draft order’, on the other, it agrees with the Respondent perhaps without explicitly saying so that it cannot overturn its decisions ‘even in the face of clear irregularities.’ Assuming the Applicant had met the requirements of urgency together with the locus standi aspect, the court in my view would not have had any alternative but to grant all prayers sought by the Applicant in the event the court was further persuaded by the substantive arguments. Would that not amount to ‘intervening too readily to overturn decisions taken by political bodies….? I am left wondering and guessing.

Politicians petition the courts as a result of, and in some cases, ‘clear irregularities in the process…’ of preparing, managing and conducting electoral processes. In some cases, such politicians would have tried in vain as it appears the case in this instance, all that is humanely possible to engage their political parties with respect to clear irregularities in pre- election processes and procedures. Courts therefore become their last resorts as final arbiters in political disputes before them to demonstrate that indeed ‘clear irregularities’ occurred which would have been ignored in some cases, with some high levels of disdain by their political bodies. For courts to therefore declare that they must be ‘astute not to intrude in the political process by intervening too readily to overturn decisions taken by political bodies…..even in the face of clear irregularities in the process….’ leaves me wondering and guessing to the point I feel courts somewhat abdicate their mandate of being final arbiters in political disputes. Political bodies across the political spectrum have in the recent past or as one can readily remember, circumvented and manipulated their Constitutions.             

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The impending case involving the Botswana Movement for Democracy (BMD) and the Umbrella for Democratic Change (UDC) awaits a court proceeding in the not so distant future. The BMD as an Applicant is complaining that its dismissal by the UDC the Respondent is fraught with so many procedural and substantive issues. The UDC is opposing this application. In the event the court finds that indeed there are clear irregularities in the dismissal of the BMD by the UDC, would the court argue that even in the face of clear irregularities in dismissing the BMD, it (court) should be astute not to intrude in the political process however irregular the process could be? It will in my view, be a ‘travesty of justice’ as some would say.

The court agreed with the Respondent in the subject matter that the Applicant has ‘alternative remedy’ in terms of Article 13.6 of the Respondent’s Constitution’ wherein she could have sought recourse to her complaints. Article 13.6 reads: ‘To request the Party at all levels, up to and including the National Congress, to consider any question or petition provided that the prescribed procedure are followed.’ The Applicant during the period leading up to petitioning the court communicated with the Secretary General of the Respondent on issues that she finally brought to court. By responding to the Applicant’s correspondence by even accepting her 50 sponsors (though such were subsequently reduced), the Respondent was somewhat providing remedy to the Applicant which she rejected. By engaging with the Secretary General of the Respondent and whatever response she got, she had exhausted the internal dispute resolution upon which she had no basis to revert back to the Respondent for recourse or alternative remedy. By agreeing with the Respondent on the alternative remedy, the court was akin to refusing to dissolve the marriage by directing the aggrieved party to return to it notwithstanding the compelling evidence that such marriage has irretrievably collapsed. I am left wondering and guessing!

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The Applicant was trying to become the President of the Respondent and not of the Republic at the time. There is no denying however that her ultimate goal was to subsequently become the President of the Republic. If she was not qualified to become the President of the Respondent as per Article 29.3.3 of the Respondent’s Constitution that reads ‘No member shall qualify as a candidate for the President of the Party unless qualified to be President of Botswana under the Botswana Constitution’, why did the Party fail to perform due diligence to find out if she indeed or not qualified to be its President and by extension, that of the Republic? To become the President of a political body does not in itself guarantee that such individual would ultimately and automatically become the President of the Republic because such political body can still vet out such individual at party level if it feels such individual is wanting in one respect or the other. It is common cause that once a political body has won a general election, such political body still has to go through a parliamentary process of electing the President of the Republic. In the instance of the Applicant and assuming she had won the Respondent’s presidential position, the political body could still vet her out and replacing her with somebody else considering the acrimonious relations between her and the leadership of the party.

Given that this application generated so much national interest in which the Chief Justice allocated it three judges to determine, was the citizenship technicality a ‘fair ground’ for the court to have dismissed it? Maybe the answer is provided by Lord Diplock  in a 1982 case when he said ‘It would be a grave lacuna in our system if a pressure group ….or even a single public-spirited taxpayer is prevented by out-dated technical rules of locus standi from bringing the matter to court to get the unlawful conduct stopped’. Because legal scholars tell us that the ‘the rules on locus standi are the creation of common law’, wouldn’t the court have approached it differently in the national interest? I am just playing a devil’s advocate here.

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With all that came out of the Pelonomi Venson-Moitoi versus Botswana Democratic Party matter, I am left asking myself legal questions whose answers unfortunately, I cannot provide because I am incompetent to do so. That said I believe competent persons may very well be asking the same questions. Judge for Yourself!       

          



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