UDC wants to change registration process without legislation - IEC
Mpho Mokwape | Monday December 18, 2023 06:00
The commission says UDC in its pursuit to obtain permission to observe and monitor the national elections registration exercise, the coalition has in effect sought for the amendment to the registration process in a manner not provided for in the Electoral Act.
“It has persuaded a judge in effect to amend the legal provisions relating to registration.
The amendment has not taken place through the usual legislative mechanism used for the amendment of statutes,” said the IEC.
IEC attorneys , Senior Counsel Andrew Redding and Otsile Rammidi on Monday before the Court of Appeal argued that the change to the registration process has been made by a way of judicial fait accompli (something that has already happened or been done and cannot be changed).
It submitted that such approach was both inappropriate and an infringement of the doctrine of separation of powers and that the judge of the court a quo erred in allowing such. The IEC also said it was unexplained how the UDC has declined to use its resources to obtain a change to the electoral legislation in order to achieve its aims in respect of registration.
“This alternative process remains available to the UDC and it is, however, not been used,” the IEC attorneys argued.
According to the IEC, Botswana is a constitutional democracy so any law dealing with the conduct of elections including the Electoral Act must conform to the fundamental rights as set out in the Constitution. The attorneys submitted that the IEC was prepared to concede that a law relating to the conduct of elections should also be consistent with or enable the IEC to comply with the requirement that it ensures that elections are conducted efficiently, properly, freely and fairly.
The IEC said any challenge to the Electoral Act based upon the Constitution would have to be based on the contention that some provision or provisions in the statute contravene one of the fundamental rights in the Constitution or perhaps was inconsistent with permitting or prevented the IEC from ensuing that the elections were conducted efficiently, properly, freely and fairly. “In this case, there is no challenge to any law, including the Electoral Act. The IEC is obliged to comply with the Electoral Act and must also ensure that elections are conducted efficiently, properly, freely and fairly,” said the IEC.
The attorneys argued that in the UDC application, it did not allege any failure on the part of the IEC to comply with the Electoral Act and that the UDC’s challenge was to the IEC’s conduct which although consistent with the Electoral Act, is alleged to be inconsistent with its duty to ensure proper, free and fair elections.
They submitted that it was necessary for the UDC to allege and prove a deficiency in what the IEC did or failed to do, which had the result that the coming election would not be efficiently conducted, properly conducted or free and fair. The IEC pointed out that the judicially recognised mechanism for challenging conduct by an administrative body as the IEC for non-compliance with any law is judicial review and there is, however, no judicial review application brought by the UDC.
“An application such as the UDC's must show that without observation or monitoring by a political party during registration, the election would not be free or fair. There is no evidence of this. The only basis for UDC is that it enjoys a right to fair election conduct and that the refusal to permit it to observe and monitor the registration process at polling stations constitutes an infringement of that right,” said IEC. The IEC submitted that the court should find that no right exists for a political party to observe and monitor the registration process, first being that it relates to the absence of a cognisable cause of action and the second being failure to make out a case which could properly gauge the jurisdiction of the High Court.
It argued that as it currently stands, the Electoral Act does not provide for the observation and monitoring of registration by a political party and that if it was an omission or failure to give effect to a constitutional right, the proper procedure is to challenge the constitutionality of the Electoral Act. The commission said the court a quo was wrong in failing to follow the principle of subsidiary and in granting relief based solely upon an invocation of constitutional right.
“The best that the UDC achieved was to plead that the right to observe the registration process was provided for in general scheme of the Electoral Act,” noted the IEC attorneys. The commission emphasised that, however, neither the UDC nor the below court identified a particular provision in the Electoral Act which implied the right to observation and monitoring on the part of a political party and that such right was not expressly conferred by the Electoral Act nor could it be read into that Act.
On the harm that the UDC argued it will suffer, the IEC differed saying there was no right established by the UDC therefore any interdictory order falls away. It further noted that any apprehension of harm is relevant only if it is found that the UDC enjoys a right pointing out that the alleged apprehension of harm appears to be based upon the contention that the UDC will be prevented from challenging registration and the correctness of the voters’ roll if it is unable to monitor them. “The court accepted this argument likening the UDC to be like a fighter with its hands behind its back. However, these allegations are self evidently untrue. The Electoral Act provides a mechanism for challenging any irregularities in registration and the compilation of voters’ roll.
There is no allegation in the papers that the UDC cannot use that mechanism,” said IEC. The attorneys argued that the UDC suggests but never leads evidence to establish that during the anticipated registration, there are likely to be irregularities, which cannot be dealt with through the statutory mechanism.
Further the IEC submitted prejudice it suffered from the court a quo judgment saying the finding by the court that they will suffer no prejudice was unwarranted, first being that it was not hard to see that the order granted has massive implications for parties who were not before court and had no opportunity to make representations particularly the President, the Minister responsible for overseeing elections, IEC, any interested voters and citizens and certainly other political parties. The commission said the relief was prejudicial in that it permits only one political party to monitor, have access to and record voter information stating that if the basis for judicial interference is in part on the grounds of fairness, it was difficult to understand how only one political party can benefit under the order.
Further, the IEC stated that once the registration takes place in terms of the new regime, it cannot be undone and that there are prospects that if it found that the registration process was unlawful, there may be challenges to the validity of registration.
“A voter registered under the new regime then bears the risk that his or her registration may be challenged and that they may ultimately be disenfranchised. There is no safeguards put in place to ensure that the registration process does not become a forum for political electioneering,” argued the IEC. In conclusion, the IEC said during the actual elections any form of electioneering was prohibited, the aim being to ensure that voters are not duly influenced or intimidated. The commission emphasised that while registration is not voting, it takes place at the polling station and as part of the voting process, the prospect that voters may be intimidated or influenced was a real one as no provisions have been made to ensure that it does not happen.