Has Justice Tau prejudged the IEC’s appeal?
There are fears that Court of Appeal Judge President, Tebogo Tau may have prejudged the IEC/UDC appeal case with the pronouncement she made on Wednesday last week.
The Independent Electoral Commission (IEC) had approached the Appeals Court to hear its case expeditiously. Justice Tau in her judgement this week, said permitting agents “of Umbrella for Democratic Change (UDC) to record names and national identity card numbers of voters appears to be intrusive.”
She said it would therefore be in the interest of justice to have the orders of the High Court considered on appeal. When granting an order in favour of the IEC on Wednesday to have their appeal application hearing expedited, Justice Tau stated that the matter is of national importance and warrants to be heard on an expedited basis.
She said regarding the application for stay of execution of the orders of the court a quo issued on the 10th November 2023 pending determination of the appeal, “this Court has held in a number of cases that where special circumstances justify it, the court should exercise its jurisdiction in granting it”.
According to the judge, the circumstances of this case are not only exceptional but of public importance and they dictate that the court should exercise its discretion to grant stay of execution pending appeal.
She indicated that the Applicant (the IEC), sought leave to have the appeal heard on an expedited basis. It also sought an order staying execution of the order granted by Justice Gaolapelwe Ketlogetswe on the 10th November
2023 pending the determination of the appeal.
Justice Tau explained that the dispute concerns the right of the UDC to have its agents present during the voters' registration process and their entitlement to record the names, identity card numbers of persons seeking to be registered as voters, and permission for agents to record the serial numbers of registration booklets at the beginning and end of the registration day.
“The complaint of the UDC was that on the 4th October 2023, it addressed a letter to the Secretary of the IEC raising several issues regarding the IEC's conduct and supervision of the previous national elections held in 2019.
“The UDC considered the conduct of the IEC during those elections to have been improper, unlawful and biased in favour of the ruling Botswana Democratic Party”, she said.
The judge pointed out that the UDC demanded that its agents or registration clerks be allowed to monitor the registration of voters by verifying the last number on the registration day to ensure that no voters were registered overnight away from polling stations.
She stated that in response, the Chairperson of the IEC rejected the UDC's demand on the basis that the process they require was not provided for nor sanctioned by the Electoral Act.
The UDC argued that the Chairman's decision to reject its demand was a violation of the rights conferred by both the Constitution and the Electoral Act.
“The orders granted by Ketlogetswe J on the 10th November 2023 are firstly, somewhat confusing, in that paragraph 2 is interim in nature as it stands pending the determination of the rights of the UDC to observe and monitor the registration of voters, whereas at paragraphs 3 and 3.1 are orders issued permitting the UDC agents to observe and monitor registration of voters as well as record the names and national identity card numbers of voters”, she said adding that these have the effect of finality.
Justice Tau said the orders also impose obligations on the IEC pending determination of the rights of the UDC in the main application.
She explained that one of the paragraphs of the order is explicit that the orders are final in effect and should be implemented immediately.
“I find that these orders are final in effect,” she said adding that there was therefore, no need to apply for leave to appeal.
Reacting to Judge Tau's Wednesday order Botswana National Front (BNF) Secretary General who is also part of UDC National Executive Committee Ketlhalefile Motshegwa said it is worrying when judges at CoA in particular Judge President predetermine matters which lower courts are still seized with. This, he said is akin to the CoA technically turning itself into a court of first instance and also akin to passing vote of no confidence on High Court judges.
He indicated that as a country “we are headed for a crisis in judiciary and dark period of democracy. If the Country was to be plunged into political crisis, then the judiciary would have contributed and at that point should be held responsibility.” He further said the duty of judiciary must be to pursue and promote justice, not to act in a manner that can be interpreted as aiding preservation of regimes.
“What is unfolding in Botswana is a miserable scenario where the Executive and Presidency intend to pack the courts with surrogates of the executive on a mission of self-preservation and protection of corruption practices.
We are witnessing the Courts being corrupted for protection of the corrupt executive elites. We further call on judges to remember their Oath of Office, and renew their pledge of allegiance to the Constitution and pursuit of justice,' he said.
He argued that the CoA must never fashion itself to be the gate keeper of the Executive arm of government. This, he said defeats the “trias politica' model or principle otherwise known as separation of powers.
“Then again it goes back to the Judicial process of selection of judges which lacks transparency to bring competent judges particularly the CoA which must be beyond reproach. That is why there must be reconfiguration of state for amongst others an independent and impartial judiciary,” he said.
He argued that the case has succeeded in exposing the flaws and weaknesses in the country’s democracy which is under siege. Beyond that, there must be citizen activism through petitions and demonstrations against an unfair electoral process falling short of freeness, transparency and international standards/protocols, he said. Motshegwa challenged citizens not wait for political crisis to escalate to the level of what is happening in some countries with political thuggery, and then start acting.