The unending litigation drama at BNF congress

Staff Writer | Thursday July 22, 2010 00:00

 

Beyond the facade of calmness amongst BNF delegates at Molefi Secondary School a lot more tearing apart was happening, mostly in the courts.

The congress was held after an urgent application to stop newly-elected president Duma Boko from contesting as he was said to be unqualified to contest under article 19.1 of the party constitution.

The High Court in Francistown subsequently ruled in favour of Boko and the BNF central committee when they dismissed the application. But that was not the end of the party's legal woes. More was still to come! The day after, Francistown Judge, Moses Chinhengo, dismissed an application by BNF members challenging the eligibility of Boko to stand, lawyers were already hard at work preparing papers for appeal.

By the end of Friday the Court of Appeal had been notified of the appeal and the matter was scheduled for Tuesday morning. The BNF delegates though appeared to be set on going ahead with the congress even with an appeal hanging over the congress. On Saturday the congress started as planned and it was business as usual.

Despite information that an appeal had been lodged at the Court of Appeal, there was indication that the central committee elections were going to go ahead anyway. Will the presidential election go ahead? Will Boko contest?

These and many more questions were bandied around at the congress. There were small group discussions but no one seemed too bothered. Later on Sunday afternoon it was rumoured that court papers had been served on the BNF central committee and presidential candidate Duma Boko that the election of central committee position will be interdicted.

It was later confirmed that indeed lawyers acting for Thuso Mogorosi, Sekgopi Bogatsu and Moses Kajane had rushed to Lobatse where they sought to interdict the BNF central committee elections pending appeal. It is understood that the High Court in Lobatse redirected them to Justice Chinhengo's court.

Meanwhile, at the BNF congress, delegates, perhaps sensing that their congress could ground to a halt, decided that it would be the congress that finally decides whether Boko stands, and not the courts.

Congress resolved that the BNF elections would go ahead and Boko would participate despite and in spite of any court decision.On Monday morning in Francistown, Justice Chinhengo agreed with Tshiamo Rantao, representing Boko and the BNF, that the application to abort the BNF elections should be thrown out, with costs. It was back to square one for Mogorosi, Bogatsu and Kajane but these comrades did not seem interested in fighting half battles. They wanted war to the finish.

It could not be over when there was still the appeal route available to them. This litigation locomotive was bound to stop at the Court of Appeal in Lobatse.   On Tuesday, while BNF results were being announced, lawyers Mboki Chilisa, representing Boko, Boingotlo Toteng, representing BNF and Yule Moncho, representing Mogorosi, Bogatsu and Kajane appeared before the Court of Appeal judge President Tebbutt, Justice Foxcroft and Justice Howie in chambers.

In this matter, the appellants were appealing the decision of Justice Chinhengo when he dismissed the urgent application that Boko should be barred from contesting the BNF presidential elections in accordance with section 19.1 of the BNF constitution.The appellants argued that the judge misdirected himself when he found that section 19.1 of the BNF constitution is ambiguous. They contend that the judge did not read the BNF constitution in totality.

They further argued that since the respondents knew about the appeal and decided to go ahead with the elections they submitted that in the event the appeal is successful the court should order that the presidential elections be declared null and void and be set aside.

The appellants further took issue with Justice Chinhengo's finding that the court should interdict the BNF because such action cannot be enforced.The BNF and Boko relied on an affidavit submitted by Boko in which he asked the court to postpone the appeal, on the basis that the urgency of it has now been rendered obsolete. He argued that the appellants wanted the appeal to be heard before the elections could be heard and he said at the time of the appeal the congress had already finished voting and they were awaiting results of some positions. 'Counting is underway and I expect to become the new president when results are announced later this morning. There is therefore no longer a need for the appeal to be heard urgently,' said Boko in his affidavit.

Addressing himself to the other relief sought by the appellants Boko said:'The elections were held yesterday, July 19, 2010. There was no violence nor any indication of the possibility of violence. In fact, my candidature was unanimously endorsed on July 18, 2010 by the national congress through a resolution.

'The resolution of congress was that I qualify in terms of  the constitution to contest for the post of president, but if there was any doubt about my eligibility in terms of the constitution, the national congress was waiving any and all constitutional impediments, including but not limited to the contentious article 19.1.

'My candidature was therefore not only endorsed by the decision of the central committee, which was the subject matter of litigation before Justice Chinhengo but by a decision of the highest body of the BNF'. The judges of the Court of Appeal agreed with Boko and ruled that the matter be postponed to the January session of the Court of Appeal in 2011.

At the BNF congress in Lobatse no one seemed to care about what happened at the Court of Appeal.

The announcer was busy identifying the ballots - one by one - to the congress in a loud hailer: Boko, Boko, Boko, Boko, Boko, Boko, Boko, Kanjabanga,Boko, Boko, Boko, Lekoma, Kanjabanga, Boko, Boko, Boko...The results, Boko 793, Kanjabanga 40 and Lekoma 10.