UDC, IEC case to be decided on November 10

UDC want its agents to observe the voter registration process IEC opposed to the move because there is no statute

Judgment in the high profile case in which the country’s major opposition party, the Umbrella for Democratic Change (UDC), has made an urgent application before Justice Gaolapelwe Ketlogetswe to have its personnel observe the voters’ registration process has been set for November 10.

The UDC is battling against the country’s electoral body, the Independent Electoral Commission (IEC), in the high stakes matter. The lead UDC attorney in the matter, Advocate Duma Boko, who is also the president of the organisation, told the court that the opposition coalition has the constitutional right to deploy its election agents during the election registration process to ensure that the process is fair, free and transparent amongst other reasons.

Boko told the court that they want their agents to be present during the election registration period because doing so will enable them to guard against any malpractice that may occur during the registration process.

Recently, the Secretary of the IEC told the press that some voters’ registration personnel have in the past been found with registration books in bars where they registered people outside the registration voting hours. Boko also submitted that it would be unfair for the UDC to have its agents present in polling stations throughout the country during the voting period while they were denied the opportunity to observe the election registration period.

According to Boko, the UDC should be present during any stage of the electoral process to make sure that the whole electoral process is fair, free and transparent.

However, the Electoral Act stipulates that political parties are only allowed to deploy their agents during the voting day. Being present during the voters’ registration period, Boko submitted, will ensure that the UDC will observe that only people who vote are the ones that registered for the elections as per the dictates of the Constitution and Electoral Act.

Boko said while there is no law that entitles parties to deploy their agents during the voters’ registration period, the country’s supreme law, the Constitution, talks about fairness, freeness and transparency in the whole electoral process hence the UDC wants to have its agents to be present in all polling stages throughout the whole registration process as per the dictates of the Constitution. He said: “The respondent made an argument that Section 65 (a) 12 (c) of the Constitution, which is very clear directs in clear terms that the elections should be free, fair and transparent.

The IEC has narrowed down the strictures that come from the Electoral Act. This proposition is incorrect and violates the elementary principles of the supreme law, the Constitution. If the Electoral Act is deficient of the dictates of Section 65 (a) 12 (c) of the Constitution, then it falls short of fairness, freeness and transparency that the Constitution talks about.

Fairness, freeness and transparency of the electoral process can only manifest if the applicant’s agents are allowed in every electoral stage including the voters’ registration period as espoused by the Constitution.”

Boko also implored the court to rule that the matter was urgent and that the rule nisi that was granted in favour of the UDC ex parte should be made absolute.

In response to what Boko said, the lead attorney for the IEC, Advocate Otsile Rammidi submitted that the applicant’s application was based on a false misinterpretation of the law and was not urgent.

Rammidi submitted that the UDC has long known that the Electoral Act does not allow party agents to be present during the voters’ registration period but only during the voting period after the 2019 General Election but it sat on its rights.

“The law recognises the right of parties to be represented by agents only during the election day, but is silent about their deployment during the voters’ registration period… The Constitution of Botswana imposes the IEC’s duty to conduct elections and not any other body or person…If the UDC wants the law to be changed in order to have its agents present during the voters’ registration process, Parliament is the only organ that has the power to do so.

There should be separation of powers between the three arms of government: Judiciary, Legislature and Executive. The applicant has not substantiated why they say that the respondent has been acting in cahoots with the ruling Botswana Democratic Party (BDP) to rig the elections. “There is no evidence to that wild claim.

The applicant wants the court to engage in a hypothetical expedition as per the letter it wrote to the IEC. There has never been a finding against the IEC that it conducted the elections in an irregular manner… The applicant’s letter is based on unsubstantiated allegations hence we are saying that this matter is not urgent and no irreparable harm will be suffered by the applicant if its agents do not take part in the voters’ registration period.

There is no basis to suspect the IEC of any malpractice. We submit that the rule nisi issued on October 23 should not be made absolute since the Electoral Act does not allow agents of political parties to take part in the voters’ registration process,” said Rammidi.