BCP finally sues IEC
Oarabile Mosikare | Friday March 24, 2017 18:00
In its writ of summons dated March 20, 2017 filed on the IEC secretary Keireng Zuze, chairperson Justice Abednego Tafa and the Attorney General (AG), the BCP claims all sections of the Electoral (Amendment) Act, Act No. 7 of 2016 which provide “for the replacement of voting by ballot paper with voting by electronic voting machine are hereby declared unconstitutional and in violation of Section 32 (3) of the Constitution of the Republic of Botswana and are hereby set aside and struck out”.
The BCP states that all sections of Act No. 7 of 2016 which provide for the replacement of voting by ballot paper with voting by Electronic Voting Machine (EVM) be declared unconstitutional as they are in violation of Section 3 as read with Sections 12, 13 and 67 of the Constitution and should be set aside and struck out.
The party also wants Section 6 of the Electoral Act, which has deleted Section 8 of the Act, thereby abolishing continuous and supplementary registration of voters is unconstitutional and violates Section 67 of the Constitution and as a result should be set aside and struck out.
The defendants are to pay costs of suit including attendant on the employment of two counsels. The Dumelang Saleshando-led BCP says voting by EVM whereby a Voter-Verified Paper Audit Trail (VVPAT) is not availed contravenes the plaintiff’s and voter’s constitutional right inherent in the right to vote, “which entitles the plaintiff and the voter to the right to count and recount the votes and verify that the votes have been properly recorded according to the will and intention of the voter”.
It also says EVMs are susceptible to hacking and therefore would violate the voters' and plaintiff’s constitutional right to efficient, proper, free and fair elections which is a corollary to the fundamental rights and freedoms of the individual guaranteed by Section 3 as read with Sections 12, 13 and 67 of the Constitution.
“Further amendment of the Electoral Act was by way of deletion of Section 8 of the Electoral Act which Section provided for supplementary and continuous registration of voters.
“The upshot of such amendment is that the period within which qualified voters can register to be voters has been curtailed and restricted to only one window of opportunity during the so-called period of general registration of voters,” read the papers prepared by attorney Gabriel Komboni. Justice Lot Moroka will preside over the matter.
Meanwhile, Johnson Motshwarakgole's National Amalgamated Local and Central Government and Parastatal Workers’ Union (NALCGPWU) recently served the AG with a statutory notice informing them of their intention to sue over the introduction of EVMs.
Just like the BCP, in the papers filed by attorney Mboki Chilisa, Motshwarakgole says EVM is a software like any other software and is susceptible to malfunctions and manipulation.
Chilisa says: “The electronic voting machines in their current form store votes in an electronic memory only and the tallying of votes is not independently verifiable and therefore infringes the fundamental rights of electorate in that there is no possibility of a public count, no way of the general public having access to the verification process with the said process being left in the hands of technicians with ‘expert’ knowledge”.
He also says that even assuming that electronic voting is envisaged in the Constitution, the introduction of EVM in its envisaged form is unconstitutional in that it does not provide mechanism(s) that allow for independent verification.
The statutory notice says ballots are self-evidently paper-based and nowhere does it allow for elections by way of electronic voting. Electronic voting is therefore not envisaged in the Constitution, he adds.