UDC accuses IEC of fishing for controversy
Mpho Mokwape | Monday December 18, 2023 06:00
The coalition says the IEC is looking for controversy where there is none and such should not distract the court, the parties or the informed observers of the case that the commission was litigating against its obligation. “Controversy is being drawn by the commission leading to its appeal before the Court of Appeal.
However, its grounds of appeal should not distract the court, the parties or the informed observers of this case that in essence, the IEC is litigating against its obligation to conduct elections efficiently, properly, freely and fairly," contended the UDC.
In an argument on Monday against the IEC appeal , the UDC lawyer Advocate Duma Boko instructed by Nsala Law Chambers, said Justice Ketlogetswe’s orders were interim in nature and in effect, that they were subject to alteration by the court and does not dispose substantially with the rights of the parties.
Judge Ketlogetswe had given UDC interim interdict and a chance to observe and monitor registration process, an order that irked IEC prompting an appeal.
The UDC explained that the bulk of the judgment was spent addressing the interim relief sought and that the judge assessed the Electoral Act and in the process stating the obligation imposed therein on the IEC. Boko explained that the court went as far as asking when an interested party may or should have an objection to irregularity regarding registered voters as he acknowledged that voters’ rolls are open to public scrutiny.
“The court went as far as to ask when an interested party may or should object to irregularly registered voters. Thereafter he acknowledges that the voters’ rolls are open to scrutiny having cited relevant sections of the Electoral Act,” said the UDC.
The UDC also argued that when Justice Ketlogetswe dealt with the right of the party alleged is subject to potential violation, he made it abundantly clear that the question that ought to be answered and on the face basis was whether or not the exclusion of the party or other similarly circumstanced persons or political players does not do violence to the requirement that the IEC should ensure that it conducts elections including registration fairly. A UDC lawyer said on the defence established, Justice Ketlogetswe made it clear that the UDC asks for or demand that its registration clerks be allowed to participate in the registration process for purposes of capturing data which it may wish to use to raise objections to the certification of the voters’ roll.
“Even when enjoined to comment critically on the Constitution and the interpretation he does so only on first impression level,” said the UDC. The UDC further emphasised that one must look at the effect of the order as weighed against the intentions of the parties, arguments led and the practical effect thereof pointing out that the effect of the judgment is that until the declaratory relief is granted or dismissed, the UDC is entitled to observe pending the determination of the declaratory relief sought.
It stated that after that declaratory relief is either granted or dismissed, the observation will be subject to amendment or completely setting aside. On President of the Court of Appeal Justice Tebogo Tau, the UDC said her judgment delivered last week Wednesday left a lot of questions raised in arguments unanswered which the coalition said could be attributed to voluminous pleadings accompanied by heads of argument filed by parties. “The heads of arguments were littered with several cases only for more cases to be submitted for consideration by both counsel in oral argument. This court had a difficult task and after hearing oral argument, the court gave itself only two days to deliver the ruling,” stated the UDC.
Further, Boko said the court in its judgment did not apply the tried and tested principles on appealability and that it did not address the constitutional point raised. Regarding Justice Tau stating that judge Ketlogetswe’s judgment was confusing, the UDC submitted that if there is any ambiguity or confusion then the court must refer the point of confusion back to the court a quo to clarify its order and that it is not for the court to admit confusion and then pronounce on the meaning of the order.
“The reason that this court cannot and is not placed to interpret an order that it has itself deemed confusing is that the judge a quo is at liberty to clarify the order if such confusion exists. In the instances the court clarifies its order and in fact what this court interprets the order to mean is different from the meaning ascribed to the words by the judge, then this court will be embarrassed,” noted the UDC.
The party said Justice Tau’s order mentioned that the recording of names and national identity card numbers is intrusive was a non starter because the information is given to all political parties at a later stage. The lawyers argued that voters’ rolls are availed to all political parties once registration is closed and that those voters’ rolls contained the names and national identity card numbers of registered voters so it would be illogical to say that for agents to record the information upon registration of a voter is intrusive.
Boko pointed out that it is not intrusive for agents to be given the same information after registration is closed. "You then might ask what harm does the party suffer to wait until the close of registration to be availed this information? The harm is that we would be given a voters’ roll containing names and national identity numbers of persons without a point of cross reference,” the UDC contends.
Focusing on interest of justice, the UDC argued that the proceedings pending between the IEC and the UDC will ultimately determine for the citizens whether the country is a republic only in the name or in actuality and that the declaratory relief shall tell the parties the extent of rights to observe the voter registration process.
The UDC further stated that should voter registration proceed while the issue is undecided to the exclusion of its party, if the court a quo ultimately decides that indeed the UDC has the right to observe the voter registration process, the horses will have already bolted and the harm will already been suffered.
“The court must weigh whether it is in the public interest to allow voter registration to happen in secret without adequate checks and balances. It is not in the public interest for the IEC to set aside the interim order pending the determination to the extent of the UDC’s right to observe the voter registration process,” said Boko.
The UDC submitted that it was in the interest of justice that the registration process proceeds regardless of the ongoing litigation, with the interim interdict in place, with the view that elections are mandated for the year 2024 and that it is in the interest of justice that the extent of parties’ rights are determined finally. Furthermore, the UDC said that the balancing act between the access/disclosure of information sought by the UDC weighed against the interest that the IEC claims it seeks to protect is what will be weighed at the court a quo where the declaratory relief is sought.
“It must be highlighted that the court has appeared to jump the gun on this point and is in fact either arguing in support of the IEC’S view or worse yet determining the outcome of the declaratory relief in favour of the IEC when the issue is still alive at the below court,” said the party. More on the intrusion, the UDC dismissed the point saying if indeed it is intrusive then by its nature, fairness and transparency are intrusive, that in the same vein that justice must not only be done and seen to be done in courts of law, the same must apply to the democratic system of a country.
On constitutional interpretation, UDC contended that the court a quo did not interpret the Constitution and made it abundantly clear that all its findings are on cause of action. Further that the constitutional interpretation if the need arises shall be addressed in the application for declaratory relief and that the rights of the parties are still before the court a quo for interpretation. In conclusion, the UDC stated that the IEC’s appeal must fail because the court a quo did not err or misdirect itself, that president Tau’s judgment did not address prospects of success and that Ketlogetswe’s judgment was in the circumstances correct and that the IEC appeal must be dismissed with costs.