It is common cause that the majority high court judgements dismissed the Umbrella for Democratic Change (UDC) election petitions primarily on account of non-compliance with the requirements of the Electoral Act. The majority stated on one hand that failure to comply is incurably bad. The majority high court judgements suggest that the sky would have spectacularly fallen had the UDC election petitions gone to trial while the minority did not think so. The majority judgements were very much predictable, similar to past election petitions.They sought and succeeded to entrench the position that technicalities far outweigh substantive justice in such election. At the end of the day and through those judgements, it is easy to vote or stand to be voted for yet it is so onerous to question whether the electoral process from start to finish was compromised one way or the other.
Scathing criticism on the majority high court judgements suggests that notwithstanding non-compliance, it was more prudent in the context of enhancing our electoral democracy, fairness and justice to commit the petitions to trial to establish whether or not fraud, corruption and rigging occured. The minority judgements provided a compelling alternative to question whether such electoral process was compromised or not by not placing too much emphasis on proceduralism. Dissenting opinions in the UDC judgments cannot under any circumstances be ignored for convenience. It is time procedure to lodge an election petition is treated as a facilitating mechanism that can be cured if and when the need arises rather than using it to suffocate and eventually kill such petitions.
Court of Appeal’s (COA) Justice Singh Walia gave a glimmer of hope by allowing the consolidated UDC appeals to be heard on urgency only for a panel of five judges to chicken out of hearing the matter, hiding behind lack of jurisdiction. We submit, once again that the sky would not have fallen had our courts allowed the UDC petitions and the subsequent appeals to go to trial. Today many Batswana, we dare say, are disapointed at the courts for denying the whole nation an opportunity to hear from the horse’s mouth if the 23 October 2019 general election was stolen by some in our midst or not? It is a missed opportunity!
In this conversation, I am interrogating why the majority judgements prevailed and why the minority cannot simply be ignored for convenience.
But before dealing with the judgements, let me state from the onset that the UDC is the architect of its own loss owing to failure to submit fully compliant petitions.Their lawyers ought to have known that court was not going to entertain clumsy submissions. More disturbing on the part of the UDC is the fact that its leader Advocate Duma Boko was part of the defence team in the much cited Kono v Lekgari election petition back in 2001 wherein similar procedural matters as in the UDC case caused the collapse of Kono's case. It is fair to state that the UDC legal team did not have to look elsewhere for research for its case than at the Kono case. The BDP lawyers’ arguments on preliminary points of law and the judgements were anchored in large measure on the Kono case. By failing to comply with the Electoral Act in submitting election petitions, the UDC handed the BDP ample ammunition to derail its case before it could begin. When all is said and done, the UDC lawyers must take full responsibility for the legal morass it created of the election petitions. They failed the masses due to their carelessness.
The judgements were premised largely on the doctrine of precedent with respect to the interpretation of Sections 115 and 116 of the Electoral Act by the COA as can be seen from the much talked about Kono and other similar cases. It is an established legal position legal scholars tell us, that subordinate courts are bound by decisions of the apex court and cannot therefore depart from them. In this respect, judges in the lower courts would be firmly tied behind their backs not to depart from the COA precedent. It would explain why also, their the majority judgments were constrained to exercise judicial discretion in dismissing preliminary points of law raised by the BDP lawyers to allow petitions to go to trial. One other point the majority justices would have had at the back of their minds and which point has been stated by the COA is that election results should not be easily invalidated. It said “….In applying the Electoral Act the Courts had to be astute not to disturb an election….” This briefly explains why the majority decisions prevailed with the consequence that the petitions stood dismissed. But the minority Lordships differed fundamentally with their colleagues hence their dissenting opinions as will be shown later in this conversation.
What do other authorities and scholars say about resolution to election petitions? Writing in a paper titled “The challenges of adjudicating presidential election disputes in domestic courts in Africa” under the auspices of African Human Rights Law Journal, O’Brien Kaaba, a Doctoral candidate at the University of South Africa, says in summary that ‘Defective and fraudulent elections are common in Africa. Although there has been some improvement since the democratic wave of the 1980s and 1990s, sham elections are still prevalent across the continent….The judiciary has, however, almost always decided presidential election disputes in common patterns that militate against the growth of democracy on the continent. The common patterns are that all cases are dismissed on flimsy technical and procedural rules without consideration of the merits.” This view very much fits in the just concluded election petitions.
The majority judgements of the high court were premised on the UDC petition failures to comply with the Electoral Act which rendered such petitions a non starter. This premise is however strongly contradicted by Bowen LJ in the Cropper v Smith case when he said “I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party.” The Constitutional Court of Zimbabwe held in the Nelson Chamisa v Emmerson Mnangagwa 2018 election petition that “It is common cause that the application was eventually served on the respondents….outside the timeframes stipulated in the Constitution….The applicant clearly breached the Rules of the Court and filed a defective application. However, due to the importance of the matter and public interest, the Court has the power to condone the non-compliance with the Rules in the interest of justice….. Where the Court considers that it is in the interests of justice to condone a departure from the procedural requirements, it is entitled to remedy non-compliance by giving an indulgence to the defaulting party.”
The majority judgements were pretty much predictable, in the same way as the other past judgements whose collapse was due to non-compliance. No surprises there really! After all, courts here and elsewhere have pronounced very loudly and eloquently, that overturning elections results is not in their DNA. A Supreme Court of Ghana judge stated in 2012 that “For starters, I would state that the judiciary in Ghana, like its counterparts in other jurisdictions, does not really invalidate a public election but often strives, in public interest, to sustain it.”
It is almost if not a given that the majority decisions held the view that technicalities far outweighed public interest. As soon as the UDC launched these election petitions, public interest inevitably became a major factor in the overall matter not only to be strongly considered, but factored in. This consideration I submit, would have been effected by committing the petitions to trial such that the nation would know whether the election was compromised or not, by some in our midst as alleged. Sadly and consequently, public interest in my view, has not been uppermost in the majority decisions. Presiding over the Botswana Congress Party v Attorney General in the EVM case, Justice Lot Moroka held that “Issues of national interest can’t be dismissed on technicalities.” While it will be argued that his view does not bind his colleagues, it is apparent that his view resonates very well with the Zimbabwe Constitutional Court. Lord Penzance held in 1878 that “Procedure is but the machinery of the law after law-the channel and means whereby law is administered and justice reached. It strangely departs from its proper office when, in place of facilitating, it is permitted to obstruct and even extinguish, legal rights, and is thus made to govern where it ought to subserve.”
When the name of the President whose party is alleged to be at the centre of the alleged election rigging and involvement of the intelligence agency did not persuade the judges to hear and determine the veracity of such claims, ‘travesty of justice’ was truly and firmly in the making. O’Brien Kaaba concludes his paper by saying: “The judiciary has routinely upheld clearly defective elections, erroneously considering it their duty to salvage defective elections as a matter of public policy. To achieve this, the courts have largely applied two techniques. The first is to simply dismiss election petitions on curable procedural technicalities without considering the merits of the case. Second, the courts have wrongly applied the substantial effect rule to uphold disputed elections, even in the face of glaring evidence….”
Dissenting opinions are said to be provided mostly in legal cases of national importance with public interest the underpinning factor. In the principal residence case which was referred by the Mahalapye Principal Magistrate to the High Court for interpretation of principal residence just before the general election, there was a dissenting opinion from one of the three judges who heard the matter. In the UDC election petition, nine judges presided over the matter in three court sessions with three dissenting opinions.
The three dissenting opinions in my view took a broader perspective as opposed to the majority who opted for a narrow, revolving-door-like perspective of relying heavily on precedence than influencing a positive change in the jurisprudential outlook of dealing with election petitions as a matter of public interest. The dissenting opinions are of the view that notwithstanding the defective election petitions in whatever form or shape and presumably in agreement with the Zimbabwe Constitutional Court referred to in this article, it is important in public interest that in the spirit of improving electoral democracy and justice that the merits of the petitions are ventilated in court so as to establish whether the petitions are premised on frivolous and vexatious grounds or whether they are premised on solid and credible grounds. Only and only when UDC allegations are subjected to the stiffest legal tests from both the judges and the BDP lawyers would it become clear whether the election was rigged or not.
Unlike their majority colleagues, the dissenters are ignoring the precedence of the Court of Appeal which has held on several occasions that election results cannot and should not be nullified when compliance has not been meticulously followed. Why would they do so? They believe that the time has come to move away from the rigidity of proceduralism as one of the factors that determine the authenticity of an electoral process. Proceduralism is exacerbated at the detriment of election petitioners by the fact that there are no specific court rules meant to ease and facilitate submission of such election petitions. This fact has also been acknowledged in passing by the majority Ladyships and their Lordships. Why should Botswana be stuck in a dispensation that some progressive jurisdictions are moving away from or have done so? We are part of the global legal fraternity and that’s why the majority and minority judgements cited authorities from other jurisdictions to beef up their arguments.
*This article first appeared in The Patriot on Sunday edition of 12 January 2020