Legal tussle threaten smooth elections UDC, 10 others make proposals to avoid Constitutional crisis
The case between the Umbrella for Democratic Change (UDC) and 10 others against the Attorney General and seven others has raised significant concerns about a potential Constitutional crisis if unresolved.
This follows a letter written by Chabuya Lowani of Moahi Attorneys dated 26th September 2024, which the Respondents' attorneys rejected. The respondents also refused the Applicants' demand to reverse the disputed appointments to the Independent Electoral Commission (IEC) and refused to grant a waiver for the 30-days statutory notice period.
The Applicants have now proposed a solution aimed at preventing the postponement of the upcoming national elections, scheduled for 30th October 2024.
They argue that, should the appointees in question be interdicted from carrying out their duties, the IEC will be unable to meet its quorum requirements as set out in Section 65A (10) of the Constitution. With only two members remaining, the Commission would be unable to function, leading to a potential delay of the elections.
The UDC and others point out that this would violate several key responsibilities of the IEC, as outlined in Section 65A (12) and Section 3 of the Electoral Act. These responsibilities include overseeing the efficient, proper, and fair conduct of elections, ensuring supervision of the IEC Secretary, and upholding the integrity of the electoral process.
The Applicants assert that allowing the elections to proceed with the disputed Commissioners would subject them to an unlawful and unfair process, a situation that a court of law would not condone in a nation where the rule of law is paramount.
To avoid this Constitutional crisis, the Applicants have proposed a temporary solution. They suggest that the Commissioners whose appointments are being challenged, be suspended from their duties until the court has ruled on the legality of their appointments.
In their place, the Judicial Service Commission (JSC) would temporarily appoint five Commissioners from a list of 10 candidates submitted by the Applicants.
These appointments would remain in effect until the court makes its determination, which is expected after the October election date. The Applicants emphasise that this proposal is made in the interest of ensuring that the
elections proceed as planned, while also protecting the rights of all parties involved.
They note that the third Respondent has expressed agreement with the list of 10 submitted, with the only objection being that the list should be increased to 26 candidates.
As a result, the Applicants believe that this temporary appointment measure would preserve the court's right to review the legality of the appointments while ensuring that the elections can take place without delay.
Should all parties agree to the proposal, the terms would be formalised into a draft consent order. The Applicants have indicated that their review application is ready for filing, pending the lapse of the statutory notice period.
BACKGROUND
Opposition parties in Botswana, including the Umbrella for Democratic Change (UDC), Botswana Congress Party (BCP), Botswana National Front (BNF), and eight others, have filed an urgent application to interdict the recently appointed IEC Commissioners from discharging their duties.
These appointments, made by the JSC on the 6th September 2024, are being challenged pending the determination of review proceedings.
The opposition, represented by Moahi Attorneys, argues that the appointments violated procedures agreed upon during the All Party Conference held on 8th and 18th August 2024.
According to the opposition, 11 out of 12 political parties at the conference recommended a list of 10 prospective commissioners, but the BDP opposed the proposal, seeking a longer list of 26 candidates.
Despite the BDP's dissent, the majority of parties voted to propose the list of 10 names to the JSC for final appointment, as per Section 65A(1)(c) of the Constitution.
Following the JSC's appointments, the opposition demanded that the Commission reverse its decision and instead select Commissioners from their proposed list.
They also requested a waiver of the 30-day statutory notice period to expedite review proceedings before the national elections on 30th October 2024.
The opposition warns that if the current Commissioners are allowed to continue in their roles, it could lead to a Constitutional crisis, as the legitimacy of the upcoming elections would be in question. This urgent legal action aims to prevent such a crisis and ensure a fair electoral process.
The case is set for hearing on the 8th of October 2024.
This follows a letter written by Chabuya Lowani of Moahi Attorneys dated 26th September 2024, which the Respondents' attorneys rejected. The respondents also refused the Applicants' demand to reverse the disputed appointments to the Independent Electoral Commission (IEC) and refused to grant a waiver for the 30-days statutory notice period.
The Applicants have now proposed a solution aimed at preventing the postponement of the upcoming national elections, scheduled for 30th October 2024.
They argue that, should the appointees in question be interdicted from carrying out their duties, the IEC will be unable to meet its quorum requirements as set out in Section 65A (10) of the Constitution. With only two members remaining, the Commission would be unable to function, leading to a potential delay of the elections.
The UDC and others point out that this would violate several key responsibilities of the IEC, as outlined in Section 65A (12) and Section 3 of the Electoral Act. These responsibilities include overseeing the efficient, proper, and fair conduct of elections, ensuring supervision of the IEC Secretary, and upholding the integrity of the electoral process.
The Applicants assert that allowing the elections to proceed with the disputed Commissioners would subject them to an unlawful and unfair process, a situation that a court of law would not condone in a nation where the rule of law is paramount.
To avoid this Constitutional crisis, the Applicants have proposed a temporary solution. They suggest that the Commissioners whose appointments are being challenged, be suspended from their duties until the court has ruled on the legality of their appointments.
In their place, the Judicial Service Commission (JSC) would temporarily appoint five Commissioners from a list of 10 candidates submitted by the Applicants.
These appointments would remain in effect until the court makes its determination, which is expected after the October election date. The Applicants emphasise that this proposal is made in the interest of ensuring that the
elections proceed as planned, while also protecting the rights of all parties involved.
They note that the third Respondent has expressed agreement with the list of 10 submitted, with the only objection being that the list should be increased to 26 candidates.
As a result, the Applicants believe that this temporary appointment measure would preserve the court's right to review the legality of the appointments while ensuring that the elections can take place without delay.
Should all parties agree to the proposal, the terms would be formalised into a draft consent order. The Applicants have indicated that their review application is ready for filing, pending the lapse of the statutory notice period.
BACKGROUND
Opposition parties in Botswana, including the Umbrella for Democratic Change (UDC), Botswana Congress Party (BCP), Botswana National Front (BNF), and eight others, have filed an urgent application to interdict the recently appointed IEC Commissioners from discharging their duties.
These appointments, made by the JSC on the 6th September 2024, are being challenged pending the determination of review proceedings.
The opposition, represented by Moahi Attorneys, argues that the appointments violated procedures agreed upon during the All Party Conference held on 8th and 18th August 2024.
According to the opposition, 11 out of 12 political parties at the conference recommended a list of 10 prospective commissioners, but the BDP opposed the proposal, seeking a longer list of 26 candidates.
Despite the BDP's dissent, the majority of parties voted to propose the list of 10 names to the JSC for final appointment, as per Section 65A(1)(c) of the Constitution.
Following the JSC's appointments, the opposition demanded that the Commission reverse its decision and instead select Commissioners from their proposed list.
They also requested a waiver of the 30-day statutory notice period to expedite review proceedings before the national elections on 30th October 2024.
The opposition warns that if the current Commissioners are allowed to continue in their roles, it could lead to a Constitutional crisis, as the legitimacy of the upcoming elections would be in question. This urgent legal action aims to prevent such a crisis and ensure a fair electoral process.
The case is set for hearing on the 8th of October 2024.
