Francistown High Court Judge Justice Lot Moroka will on Thursday deliver a ruling on the democracy defining Electronic Voting Machine (EVM) case which has been registered with the court by Botswana Congress Party (BCP). BCP has taken the government to court in a bid to stop the use of EVM in the 2019 general elections and has cited the Attorney General (AG) as well as the chairperson and secretary of the Independent Electoral Commission (IEC). The BCP – an affiliate to the Umbrella for Democratic Change (UDC) – also wants all sections of the Electoral (Amendment) Act to be declared unconstitutional. However, the AG on Wednesday prayed to the court for the matter to be dismissed with costs well before the merits of the case could be heard in court, arguing that the applicant had failed to file its declaration within the stipulated nine days’ period. “The issue at hand defines the nation’s democracy since voters using electoral processes choose people who are given the power to rule the country,” argued Moroka when postponing the matter to Thursday. AG’s Matlhogonolo Phuthego warned the court that BCP’s late filing might set a bad precedence to other litigants to do so, rendering the penalties that the courts can sanction for non-compliance useless. “The appellant is saying that they are still looking for an EVMs expert,” said Phuthego, adding that BCP’s actions have thrown the case into disarray, saying it remains unknown when it will proceed.
Phuthego added: “Rules of the court are meant to be obeyed and not be flouted willy-nilly like the appellant is doing in this matter. Otherwise, the courts are not going to be taken seriously if litigants are not taken to task for not obeying court rules.” Phuthego said if the BCP still insists that EVMs can be hacked, it should withdraw its case and then re-launch its application when it is ready after acquiring an expert. He said the court cannot indefinitely wait for the BCP to acquire an expert. “The BCP is not even mentioning which part of the amended Electoral Act is ultra vires the constitution. The court should not allow the BCP to trivialise this issue,” Phuthego said before imploring the court to dismiss the application until such time that it is ready with its expert. For his part, defense lawyer Gabriel Komboni admitted that the applicant delayed filing the declaration. However, he was quick to defend their actions, arguing that late filing is an insufficient ground to warrant dismissal of a matter.