EVM case demise
Oarabile Mosikare | Friday October 6, 2017 18:00
This worry comes after Justice Phadi Solomon ruled against four Judges who refused to apologise to Chief Justice (CJ) Maruping Dibotelo for the now infamous 2015 petition that purportedly undermined his authority.
The quartet, Justices Tshepo Motswagole, Lot Moroka, Gaolapelwe Ketlogetswe and Godfrey Nthomiwa applied to the High Court praying with it to review and set aside a decision of the Judicial Services Commission (JSC) to open an investigation against them in respect of a petition dated August 15, 2015.
The four had cited the JSC, Dibotelo, in his capacity as the chairperson of the JSC, and the Attorney General (AG) respectively as respondents in the matter. Dismissing the application, Solomon said that the judges’ contention that the first and second respondents wanted to carry out an investigation against them was just a perception.
Four other judges, Key Dingake, Modiri Letsididi, Mercy Garekwe and Ranier Busang were suspended from September 2015 to March 2017 for the same petition, with Khama ultimately lifting the suspension after they apologised to him and Dibotelo. Other judges now fear for their colleagues after Justice Solomon dismissed their application on Wednesday.
“The finale is going to be crafted by the JSC in such a way that they are not taken by surprise with an out-of-court settlement. The judges may appeal, but the JSC may move quickly to report them to Khama. There is nothing stopping them as the 30 days to ‘show cause’ have now elapsed,” said a highly placed jurist.
He said as long as there is no ruling or judgement on the EVM case, the status quo remains and “the door remains open for their use come 2019. This suspension will kill the EVM case”. Another lawyer posited that this is a masterstroke to the Botswana Democratic Party (BDP) that favours the use of EVM during the 2019 general elections.
His other bone of contention is that “couldn’t this be that the JSC is trying to make space for the acting judges for now, or even in the long term? They also want to remove Justice Moroka in the EVM case”. In the EVM case, the Botswana Congress Party (BCP) amongst other reliefs, says that all sections of the Electoral (Amendment) Act No. 7 of 2016, which provide for the replacement of voting by ballot paper by EVMs, to be declared unconstitutional and in violation of Section 32 (3) (c) of the Constitution of Botswana and be struck out.
Recently, Justice Moroka dismissed the Attorney General in which he wanted the BCP’s suit to be dismissed because the party had filed its declaration nine days out of time. Judge Moroka reasoned that the EVM case should be determined on merits and not on technicalities.