Sello Motseta
10th January 2020
Although the ruling party’s lawyers are quite happy to go to trial to establish the accuracy of allegations of vote rigging in Ghanzi North, it insists the Court of Appeal(CoA) does not have jurisdiction to listen to the petitions of Duma Boko, Kenneth Sekgokgo, Victor Phologolo, Nelson Ramaotwana, Mpho Pheko, Ketlhalefile Motshegwa, Moagi Mlebatsi, Gilbert Watshipi, Mohammad Khan, Onthathile Selatlho, Patrick Molusti, Marcus Chimbombi, Haskins Nkaigwa and Sam Dogwa.
In terms of section 106 of the Constitution of Botswana, an appeal is only allowed if it does not involve an interpretation of section 69(1) of the constitution.
Section 69(1)(a) empowers High Court to determine whether any person has been properly elected as an elected member of the National Assembly or if any such seat becomes vacant.
“There is no statute that confers the Court of Appeal with jurisdiction to entertain these appeals and therefore the decisions of the High Court in these matters cannot be interfered with,” said Basimane Bogopa, Senior Partner for Bogopa, Manewe, Tobedza and Company.
He said, “No appellate court has an inherent jurisdiction to take appeals from judgements and orders of a lower court. Such jurisdiction can only be conferred by statute but none has been conferred on the Court of Appeal with respect to these matters.”
This position appears to be at odds with Court of Appeal (CoA) Judge Lakhvinder Singh Walia who said that the opposition Umbrella for Democratic Change (UDC) has reasonable arguable cases on elections appeal hence he found no reason for refusing the expedited hearing of the appeals.
The 15 applicants, including the UDC leader Duma Boko, who were unsuccessful candidates in October 23, 2019 parliamentary elections had petitioned the High Court challenging the results.
The petitions were heard by the High Court in three tranches. In each petition there was one dissenting ruling and by majority decision each petition was dismissed, the court in each case upholding the respondents’ (Botswana Democratic Party candidates) preliminary technical issues.
Justice Walia said at a roll call recently, the parties reached a consensus that sufficient reason exists for the expedited hearing of the appeals and that the appeals be consolidated. He said appeals could be heard on January 29, 2020 but that now appears unlikely with questions of jurisdiction raised.
It however appears that the BDP is amenable to proceeding with case of Ghanzi North Parliamentary aspirant, Noah Salakae who is challenging validity of results in his constituency.
‘They are denying allegations of vote rigging. The therefore has to be trial and evidence entered,” said Dick Bayford, Senior Partner for Bayford and Associates when discussing the matter of Salaekae.
Basimane Bogopa, Senior Partner for Bogopa, Manewe, Tobedza and Company said “They have withdrawn affidavit of whistle blower alleging collusion and corruption at the highest levels of Government. These were lies.”
He said, “We are quite happy to allow petitioners to present evidence and to go to trial and to establish the truth.”
