The constitutional principle of regular elections will be preserved at all costs

Kgosietsile Ngakaagae | Friday November 30, 2018 13:54

The application sought orders that the election rolls be struck down and declared null and void and that the Supervisor of Elections be ordered to put in place a registration method for voting for all citizens outside of Botswana.

In the alternative the court was requested to rule that “an election procedure that does not some Batswana working outside the country, namely the second and third Applicants, to vote, was in breach of the constitution. A further order was sought declaring “the Writ of Elections for 1994 announced by the President to be stayed alternatively rescinded pending the putting in place of the procedure for registration and voting of second and third applicants”. In essence, if the Applicants had their way, if their requests were not heeded, there would be no elections in 1994.

The court referred to a principle of the law that an individual has no status or standing to challenge the validity of anything done under any law unless he is specially affected or exceptionally prejudiced by such action. In other words you cannot just go about challenging laws for fun. You must show how you are adversely affected. The Attorney General argues that as the Botswana National Front was a political party and not a natural person, it could not be a voter and therefore “could only attack the election roll on the basis of a breach of a legal principle if such breach would prejudice it” and that a party cannot bring an application on behalf of a voter.

To this challenge, the court observed that the Botswana National Front was a political party, and like all political parties, depended for its very existence on its followers and supporters. “The greater the number of its followers and supporters, the better are its chances of forming a government of the country. Indeed the supporters of a political party, the court observed, “are its main assets and the means by which, through the ballot, it can achieve power to govern. Unless such supporters are registered voters, such party will always stay in the wilderness, millions of miles away from achieving power. Political parties must of necessity have a vested interest in the smooth running and the proper administration and application of the Constitution and the electoral act and related legislation”.

On this reasoning the challenge by the Attorney General had to fail. A political party has the right to approach a court for relief where it considers that its chances of forming government were affected by any wrongful or unlawful act or legislation. 

The court reiterated the requirement that we have discussed in previous columns.  Applicants in an electoral petition or an application are expected to give notice to all interested parties, almost certainly other political parties, to enable them to join in the application and to have their say. The first Applicant, had failed to do so. However since it was a genuinely urgent matter it would be unfair to deny the first applicant locus standi on those grounds. The Botswana National Front, as a political party, had a substantial interest in the proper running of the electoral process and therefore had locus standi.

The court then dealt with prayers that the election rolls compiled by the supervisor of elections be declared null and void. According to the Botswana National Front, a form which was unauthorized by the electoral Act had been used by the supervisor of elections.

The court held that Form A as prescribed by the electoral act was in a schedule which formed part of an act of Parliament. An act of Parliament, or its schedule, can only be amended by Parliament itself.

In seeking to amend the Form A, there was no doubt that the supervisor of elections contravened the electoral act and that his Acts were unlawful and therefore null and void and of no effect. The Attorney General, however, argued that only the insertions should be read as null and void.

In deciding whether the election roll should be declared of no effect, the court needed to consider whether any serious public inconvenience would be caused. It observed that Parliament was dissolved on 26 August 1994 and a writ of election issued with the result that a general election was to take place on 15 October 1994 using the same rolls the subject of prayer A.

It must be noted that the court generally agreed with the Botswana National Front in its arguments. However the importance of regular elections trumped the truth of the Applicant’s submissions. The court observed that even under a state of emergency, elections must be held within that period of five years: see section 91(5) of the Constitution and that if it were to give the relief sought there would be a constitutional crisis. The only time that elections can be held outside the five year period, in terms of the Constitution, was according to Section 91(4), in particular, at any time when Botswana is at war.