IEC fails in stay recusal bid

Lebogang Mosikare | Wednesday December 6, 2023 08:51

The IEC has applied that Ketlogetswe should recuse himself from presiding over the case in which UDC wants its agents to observe and monitor the election registration process. The respondent in the matter is the IEC. The registration process has since been postponed indefinitely after the UDC was granted a rule nisi (a rule or order upon condition that is to become absolute unless cause is shown to the contrary) pending the hearing and determination of its main case (to have its agents observe and monitor the election registration process). The IEC is vehemently opposed to the UDC application saying that no provision in the Electoral Act expressly states that party agents should observe and monitor the election registration process. The UDC still insists that the 2019 elections were rigged by the IEC in connivance with the Directorate of Intelligence and Security to favour the Botswana Democratic Party. All the parties mentioned above deny the UDC allegations. The attorney for the IEC, Otsile Rammidi prayed with the court to stay the proceedings in the matter pending the determination of the joinder application that was filed by the Attorney General (AG). Asked by Justice Ketlogetswe if the applicants have made a formal application concerning his recusal, Rammidi said that the IEC will respectfully do so after the court has finally dealt with the joinder application that was filed by the AG. According to Rammidi, the ruling in the joinder application may have a bearing on how the IEC couches its recusal application. Asked by Ketlogetwe if the IEC has made a formal application for the staying of proceedings, Rammidi said that no application was made to that effect. “We say so because his lordship has said that the joinder application filed by the AG will be heard and determined by another judge,” said Rammidi, to which Ketlogetswe said that there was no formal application before him to stay the recusal application.

For his part, Advocate Duma Boko of the UDC said it was improper for the IEC to move its application for the staying of proceedings by word of mouth instead of using the proper way of filing a formal application. At that point, Ketlogetswe made a ruling that since there was no formal application before him to stay the proceedings, he was continuing with the recusal application. Rammidi said that the IEC premises its application for Ketlogetswe’s recusal on the basis that Ketlogetswe will handle the UDC’s main application, which ruling may put the IEC at a disadvantage, adding that Chief Justice (CJ) Terrence Rannowane has written a letter that two other judges should also preside over the UDC’s main application with Ketlogetswe. Asked by Ketlogetswe, when is a court duly seized with a matter and at what stage was the CJ allowed to empanel judges. In response, Rammidi said that a court will remain a court even when the CJ decides to add more judges to preside over a case. Quizzed by Ketlogetswe if the CJ is allowed to add more judges if another court was already seized with the matter as was in the present case, Rammidi submitted that their position was that the procedure to empanel judges is made when a case is registered and not after the case has been already allocated to a judge to preside over it. Asked which law allows the CJ to add other judges when the case has been already duly allocated to another judge, Rammidi said the procedure as he understood it, is that the cases are allocated to judges at the point of registration. He said the CJ took the decision to add more judges to preside over the UDC vs IEC case because it was matter of utmost public interest after the case was already allocated to Ketlogetswe. Probed by Ketlogetswe if Rammidi so wished to answer, what may have motivated the CJ to empanel other judges, Rammidi said that he was not in a position to answer for the CJ because he was not representing him. Asked by Ketlogetswe if it was correct or not that the IEC wrote a letter to the CJ asking him to empanel judges, Rammidi said that no procedure allows parties to a matter to write letters to the CJ asking him to add more judges to a case that they are involved in.

When Advocate Boko of UDC was asked the same questions that Ketlogetswe had earlier posed to the IEC attorney, he said that a court is a court upon being duly seized a matter. Asked by Ketlogetswe if anybody, including the CJ, can add other judges to a matter that was already duly allocated to another judge, Boko replied, “No." "The reason for that is that there is an obligation for the judge who has been allocated a case to manage it up to its conclusion without undue influence. This is in terms of Order 42 Rule 1 of the High Court of Botswana (Case Management: Allocation of cases and case management conferences).” “The Registrar shall, on the registration of any cause, allocate such cause to a judge who, from the time of such allocation shall manage the cause as provided for in this order,” the Order reads. Asked by Ketlogetswe again if anybody including the CJ can add more judges to a properly constituted court, Boko said: “No.” Ketlogetswe then asked Boko if the empanelment of judges can be done after a case has already been allocated to another judge, Boko responded: “No. Order 42 Rule 1 regulates that and the empanelment must occur at the point of registration before allocation.”

Probed further by Ketlogetswe if more judges can be added if a court is already properly constituted, Boko answered in the negative. Ketlogetswe then asked Boko if his court was not properly seized with the current matter. In response, Boko said that the notion that Ketlogetswe was not properly seized with the matter was improper and not based on any law. Boko stated that the impartiality that was been bandied about by the IEC in its recusal application in their founding affidavit was three-pronged: “(1) that Justice Ketlogetswe will form part of the panel that will hear the UDC’s main application against the IEC (2) that Justice Ketlogetswe cannot determine whether the panel was properly instituted... (3) that Justice Ketlogetswe cannot be a judge in his own case.” In the end, Boko submitted: “The standard of test of bias or prejudice etc. should be motivated by reasonable grounds, not mere speculation. The applicant orchestrated this empanelment of judges by writing a letter to the CJ and Registrar to that effect. Having attained its desire to add more judges, the applicant moves to seek the disqualification of Justice Ketlogetswe. Even in the letter they wrote to the CJ and registrar, the applicant affirms that the matter is before Justice Ketlogetswe. They acknowledge this in their letter even if they motivate the empanelment. There is no suggestion in the letter that this case is not properly before this court. Even in their founding affidavit, the applicant affirms that this matter is before Justice Ketlogetswe. The question is, are facts as indicated and raised by the applicant any reasonable grounds for bias on the part of the judge? This is an applicant who motivates an empanelment and then turns around. The application is not reasonable... This court cannot be removed by vague speculations. We submit that this application should fail. If this application fails, we need to be given costs including costs consequent upon the hiring of counsel.” Meanwhile, Justice Ketlogetswe referred to the ruling on the empanelment application on December 7. Facts in the matter are interlinked with those stated in the recusal application.