Botswana Movement for Democracy (BMD) has suffered another devastating blow after the Court of Appeal (CoA) refused to expedite its appeal under a case in which the party was challenging the High Court judgment that has ruled in favour of Umbrella for Democratic Change (UDC).
The Sidney Pilane led movement has been challenging its expulsion from the UDC coalition last year in October and the High Court dismissed the case saying the BMD failed to produce a legal or credible case to convince the courts.
The Judge President of Court of Appeal, Justice Ian Kirby, dismissed the BMD application for an expedited appeal saying giving it, would likely cause voter confusion and uncertainty in elections.
Kirby said seeking indulgence of expedited appeal is neither in the interests of justice nor in the public interests, and on the other hand would be only prejudicial to the respondents being the UDC. He went on to say that the demand by the BMD that it should take part in the selection of the 57 UDC parliamentary candidates and the 490 UDC council candidates is unlikely to happen. This, he said, it is because the UDC has already incurred substantial expense for campaign materials such billboards, posters adding that it is too late to replace any of those candidates.
“A successful appeal would not have the effect of replacing any of those, and its sole effect would be to create uncertainty, confusion in the minds of the public as to the true identity of the UDC candidates. This in turn would greatly prejudice the UDC and will not benefit the applicant (BMD) in any way,” said Justice Kirby.
Kirby also averred that in so far as the UDC’s presidential candidate is concerned, it has also long been agreed (with the concurrence of the BMD) that this should be Advocate Duma Boko. According to Kirby, there is no prospect of the UDC or its other group associates to being persuaded to replace him (Boko) with Pilane, even if the appeal is expedited or is successful.
“The BMD will not be prejudiced, whether it wins or loses the appeal, and whether it is expedited or not, since it and its candidates will still be able to exercise their full democratic right to contest for the 2019 national elections and have their popularity measured by the voters,” Kirby said.
Doubts on BMD, UDC relations
The CoA also noticed that there has been a complete breakdown in relations between the parties hence making any reconciliation, particularly in a short time, is most improbable. Justice Kirby said the submissions by the two parties were reflecting intense conflicts despite Pilane’s argument that there is still a room for improved working relations between parties.
Pilane reiterated that a successful BMD appeal will restore its right as member of the UDC insisting that will result in taking part in the formulation of UDC manifesto, with no harm encompassed.
The party’s losing of the appeal has delivered another devastating blow after it lost with costs earlier on the case that they have been challenging their expulsion from the umbrella pact. High Court ruled that BMD has been duly suspended and subsequently expelled from the UDC.
CoA declined to exercise its discretion to grant BMD the indulgence of an expedited appeal, noting that the appeal will take its turn with other appeals in the waiting list; hence it will be heard at later date. Accordingly, the CoA ruled that the costs of this application will be costs in the appeal.
Meanwhile, BMD chairman Nehemiah Modubule expressed doubt in the courts saying that for the CoA's refusal to hear its appeal is a setback for the party but, remaining resilient ahead of the polls. “We are going back to the drawing board and will have to focus because the ground is still fertile for everyone in this year’s election that’s why we see new parties such as BPF, he said briefly on the sidelines of the court after the ruling.