Judges settle voter 'principal residence' confusion
Mpho Mokwape | Friday July 12, 2019 13:49
The judges in their separate ruling on a matter that was brought before them by one voter, Mothusi Maribe against Minister Dorcus Makgato, collectively agreed that though the word ‘principal residence’ has been used in different context in the particular it meant an ordinary residence or most important residence that is usually occupied by the person, with a degree of permanence and continuity.
“In other words principal residence as stated at section 67 (3) (a) of the constitution means a residence that the voter occupies as his usual home, occupied with a high degree of continuity and permanence at the relevant time,” reads Komboni’s ruling in a minority opinion.
Maribe had brought the matter seeking constitutional interpretation on the principal residence as he was challenging that the Ramokgonami/Sefhare parliamentary candidate Makgato had registered to vote in his principal residence.
In Rannowane’s judgement on the constitutional interpretation of the word ‘principal residence’, he explained that it means the voter’s most important residence. Meaning that prospective voters are entitled to select which one of their several residences they deem ‘most important’ for the purposes of registration for elections.
“Put differently, voters who have more than one residence are entitled to choose which residence they prefer to use for registration for elections,” he explained.
The Chief Justice Rannowane and Justice Chris Gabanagae in the majority judgement stated that the principal residence simply meant the most important residence as preferred by an eligible voter although section 10 (3) of the Electoral Act empowered the Registration Officer to determine the entitlement of the prospective voter to register to vote at any particular polling station.
That in the case of a voter having more than one residence, such a determination would depend entirely on the voter’s preference pointing out that in Makgato’s case the registration officer had already made such a determination hence her registration. Rannowane explained that it was common knowledge that many traditional families possess two or more dwellings and that the migratory habits would make it impossible for any election officer to determine where such voters spend most of their time.
“If the court hold that principal residence means where one spends most of one’s time. It will create an insurmountable task for IEC to come up with such a data base,” he said. In the case of the minister, Rannowane said if the law required that an officer makes determination of the principal residence by reference to the number of days the voter spends at one of his/her residence, it might lead to a situation where most ministers and Members of Parliament are adjudged to be irregularly registered.
Further explaining that it was because that most of them register to and in fact vote at their constituencies outside Gaborone whilst they reside in Gaborone because of the exigencies of the service.
He stated that if provisions of the Constitution were to be interpreted narrowly and out of context it would mean that most MPs and Cabinet Ministers whose constituencies are outside Gaborone would not be able to vote for themselves or meaning they should commute daily to the city from their constituencies. In Komboni’s ruling the constitution, especially section 67, should be viewed within the wider dispensation of the electoral framework and the settlement patterns and demography.
He said such interpretation should be done objectively and as matter of fact, which should be established based on the evidence available and not on the label that the person affected chooses to place a particular residence in the event they have more than one residence.
“If the legislature had intended that a voter who has more than one residence can register in anyone of the residence, then such provision would have been made in clear terms,” he said. Both judges at the end remitted back the case to Mahalapye Magistrate’s court for final determination.