The High Court has declared that outside based voters are entitled to vote for both Member of Parliament and councillor as a constitutional right.
In an order delivered recently by Lobatse High Court Judge, Justice Godfrey Nthomiwa declared that it was unreasonable for the Independent Electoral Commission (IEC) to deny voters to vote for both candidates while the IEC Act does not prohibit the practice.
The judgement, which has set precedence for other voters outside the country, came after one voter, Bakotelo Mmipi had taken the IEC and its secretary to court for denying him to vote for all candidates in his polling station.
He is currently based in the United Kingdom (UK) and previously he was reportedly told by IEC that he would only vote for the MP at the Botswana High Commission in UK and not a councillor, as there was no such provision.
However, judge Nthomiwa when delivering his judgment made it clear that the IEC has that obligation to make in order to make sure that Mmipi fulfils his constitutional right for voting.
“The applicant is entitled to vote for both an MP and a member of council provided facilities are in place for that purpose. That the decision of IEC to deny the applicant the right to vote for a councillor is set aside as unreasonable,” he said.
The judge advised the IEC that going forward it must put in place facilities that would make it possible for the applicant and others in foreign countries to vote for both candidates as the Act does not prohibit such to happen.
This was in his acknowledgment that though the voter has such rights, it
It will therefore be impossible task to expect the IEC to comply with all the requirements of the act to facilitate for voting a councillor outside the country,” he said. Judge Nthomiwa said notwithstanding that, it was still wrong for the IEC to state that the applicant could not exercise his right to vote for a council member in London.
He further explained that it was only sensible and legal that the voter’s right to vote for both candidates of parliament and council be declared because to do otherwise would simply be to defeat the intention of the legislature.
At the brief of the matter is that, Mmipi had registered as a voter at the Lerala-Mauntlala constituency and was entitled to vote for the MP and the councillor for his area before relocating to UK for studies.
He asked for a transfer from the IEC and upon his completion of transfer was reportedly informed that as a result of transferring he would only be able to vote for an MP and not a councilor without any valid reasons and was forced to seek the legal route after expressing his discontent. Attorney Tsholofelo Mvungama appeared for Mmipi.