Two out of a panel of three judges in Francistown yesterday ruled against the Umbrella for Democratic Change election petitioners.
Haskins Nkaigwa, Sam Digwa and Micus Chimbombi had petitioned the Independent Electoral Commission, Botswana Democratic Party Secretary General Mpho Balopi and the Vice President Slumber Tsogwane respectively.
Justices Tshegofatso Mogomotsi, Phadi Solomon and Bashi Moesi read the ruling yesterday at the Francistown Regional Magistrate Court.
While both Mogomotsi and Solomon were unanimous in the ruling, there was however a dissenting judgement from Moesi.
In dismissing the UDC petitions, the two judges unanimously agreed that there was no compliance from the three petitioners.
They stated that without a proper description of a locus standi (the right or capacity to appear in court), there’s a fundamental irregularity in determining the right of audience before court.
Reading the judgement, Mogomotsi reiterated that an applicant or litigant who fails to make averments (statements) which are necessary to show that he has locus standi does so at their own peril, for it forms the very basis upon which his presence before court draws its life.
“The general rule is that an applicant must stand or fall on its founding affidavit and the facts alleged therein,” Mogomotsi said.
She said the locus standi of IEC who most of the allegations and the petitions are directed has not been adequately provided to satisfy the court regarding its legal capacity to sue or to be sued.
“The fact that IEC is a creature of statute does not automatically clothe it with the requisite locus standi. Not all statutory bodies have the right to sue or be sued in their own names,” she said, adding that it’d be erroneous and presumptive of the court to make such an assumption.
She further said it was not the court’s duty to comb through for papers filed of records in search of the parties locus standi.
However in his minority ruling, Judge Moesi argued that locus standi is outdated and no longer presents an insurmountable challenge to litigation which has public interest attached to it.
He ruled that the court should proceed to deal with substance of the case.
He said this would be in the interest of justice, the concern of the public and the upholding of the rule of law. Moesi said an election petition falls under the category of constitutional litigation and carries with it considerable public interest.
“In matters of public litigation this court would be remiss and indeed guilty of committing an absurdity if it denies a genuine and bonafide litigant access to justice on a weak argument of lack of standi by the IEC when the constitution clearly assumes that such action should from time to time be taken against such a body,” he said.
The judge said in arriving at his ruling he was guided by the growing jurisprudence in the country which has established the legal positions that the provisions of the rules of court were not adopted by the Electoral Act and were of no application to the the petitions and also that the power of the courts to consider the irregularities of the elections was not derived from any inherent jurisdiction nor did it arise from common law, but was to be found within the corners of the Electoral Statutes.
“Court shall proceed to deal with substance of the case and costs awarded in favour of the petitioners,” Moesi observed although his ruling was defeated by the views of his fellow panelists.
Politicians clash over Covid-19 meeting
The fight against Covid-19 stepped into the periphery of partisan politics this week as the absence of Umbrella for Democratic Change (UDC) leaders sparked accusations and counter-accusations over their invitation to President Mokgweetsi Masisi’s closed meeting.
UDC President, Duma Boko and party vice president, Dumelang Saleshando, were not part of the delegation that attended the three-hour long meeting.
Although Masisi stated that Boko, like other party leaders was invited, the UDC has vehemently denied the claim.
In a press release that was issued last night the UDC said. “We have noted the events that have been evolving around the Covid-19 pandemic, its a serious matter that requires all of us to work genuinely. We value and encourage national dialogue on important matters such as the fight against Covid 19. The truth is that the UDC president has not received any invitation from Office of the President and we call OP to provide proof.”
However, when the UDC Spokesperson, Moeti Mohwasa was asked about calls made to him by OP, he said, ” I was asked about Boko’s whereabouts by Kaelo Molefe and I told him I was in Phikwe. I asked him to check him at his house. This morning I got another call from Professor Mpho Molomo who said he had Boko’s invitation to a meeting with President Masisi and I suggested that they go to his house, an address which is popular within the government enclave. I indicated to him that I had received a similar call from Kaelo Molefhe and he said he was with him. Kaelo knows where Boko stays having been his associate in the build-up to the 2014 General Elections. So quite frankly I doubt he would say he does not know Boko’s house. As regards Nick and Keorapetse I cannot comment on their behalf, ” explained Mohwasa last night.
Dithapelo Keorapetse too said that the OP was being playful. “Why would they contact me for DGB? They are aware of his PA, VP, Secretary General, Spokesperson and UDC NEC. These are the people from who to check him. Whoever wants the UDC President from me for official things is playing. The state has been to his house several times. How did they suddenly forget his place of abode? Even Kaelo knows Boko’s House from his UDC days, ” said Keorapetse.
The accusations did not go well with the BDP Chairman of Communications, Kagelelo Kentse, who expressed concern that the UDC was turning a pandemic into a political mudsling.
He said that all efforts including calls, text, WhatsApp messages to Boko, Moeti, Keorapetse and Boko’s bodyguard were made without any success. “There is a communication trail to prove this. UDC must know when to come to the table and be patriotic on issues on national interest such as COVID-19, its very disappointing for a party calling themselves an alternative government to behave in this manner but Batswana are watching and we know they will punish them for this.”
BPF opposes 6 months State of Emergency
Botswana Patriotic Front (BPF) president, Biggie Butale, yesterday broke ranks with other opposition leaders parties as a opposed a six-months long State of Emergency proposed by President Mokgweetsi Masisi, at a closed meeting.
Although other party leaders such as the president of Botswana Movement for Democracy, Sidney Pilane, Vice president of Alliance for Progressives, Wynter Mmoltsi and Gaontebale Mokgosi of Real Alternative Party, supported Masisi’s move, BPF took a different stand. “State of Emergency must be used only in extreme circumstances and now we at BPF are not comfortable with it because once it becomes a habit, maybe in the future government may not be as kind as the current government and find an opportunity to abuse it.”
Butale however said that the meeting for all party leaders was useful and that it would go a long way in enhancing Botswana’s fight against the Covid-19 pandemic.
Masisi’s call for six months of State of Emergency follows the unrelenting global rise in coronavirus cases of which Botswana has since recorded.
Today Masisi was scheduled to meet cabinet and all members of Parliament as he continies to lobby for a six-months long State of Emergency.
The president has since explained that should the situation improves then they will stick to the initial 28-day lockdown plan which started on the 2nd and ends on April 30th.