End of the road for Moswaane

The ruling Botswana Democratic Party (BDP) will go without a candidate in the Francistown West by-election scheduled for January 2014.

The Court of Appeal ruled on Wednesday that the Independent Electoral Commission (IEC) acted properly by barring Ignatius Moswaane from submitting his nomination papers.  Three Court of Appeal judges upheld Justice Terrence Rannowane’s judgment that the IEC was legally justified and obliged to respect the court order by refraining from accepting Moswaane’s nomination papers.

At the time Rannowane noted that accepting the nomination, despite the court order, would have amounted to aiding and abetting the commission of a crime of contempt of court. “Our strength as a country lies in our continued respect for the rule of law including respect for court orders even if they can reasonably be perceived to be wrong or unfair,” said Justice Rannowane. He said to hold otherwise would be creating a dangerous precedent which might in future lead to anarchy and lawlessness. 

The BDP appealed this decision but this week Court of Appeal president Ian Kirby said court orders should be taken at face value and should be respected without debate. Kirby was presiding over the case with Justices Elijah Legwaila and Isaac Lesetedi. “We are satisfied that Justice Rannowane’s approach was correctly taken,” said Kirby adding that the trio was also in agreement that the IEC officer who refused to receive Moswaane’s nomination papers acted properly. Kirby then dismissed the BDP appeal with costs. He noted that full reasons for their ruling would be given on the 10 of January 2014 during the Court of Appeal session. Earlier on, lawyers in the case centred their arguments on whether is was lawful for the IEC returning officer not to receive Moswaane)’s nomination as a candidate for the by-election. Advocate Mark Antrobus representing the BDP argued that the retuning officer fundamentally misdirected herself in refusing Moswaane’s nomination.

According to Antrobus, the returning officer was under statutory obligation to receive the nomination because the court order did not stop her from receiving the nomination. However, Advocate Andrew Redding who was instructed by the IEC legal team argued that when a court order is issued the rule of law requires that it should be obeyed. “Our law requires for the respect of law. It would be dangerous to allow returning officers or any officer to determine whether court orders are valid or invalid,” he said. Whyte Marobela’s attorney Obonye Jonas also noted that the acceptance of the nomination by the IEC would have rendered Justice Tshepo Motswagole’s order null and void. The decision by the Court of Appeal now gives the opposition parties a chance to snatch the constituency from the BDP. The Botswana Congress Party (BCP), Botswana Peoples’ Party (BPP) and two independent candidates will contest the by-election on the 25th of January next year. However, there are two more High Court decisions on the same matter, which the BDP will challenge in court.

These include Judge Motswagole’s court order, which barred Moswaane from submitting his name. The BDP is also likely to appeal Justice Godfrey Nthomiwa’s recent ruling nullifying the BDP central committee to dismiss Marobela’s appeal without calling for his oral evidence. Marobela, who lost the BDP Francistown West primary elections to Moswaane, had launched a review application of the decision by the BDP central committee to dismiss his appeal without calling him or his witnesses for oral evidence.

In his judgment Nthomiwa said the decision of the BDP central committee to dismiss Marobela’s appeal without calling him for oral hearing was unacceptable and that the party did not observe the rules of natural justice.