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Election petitions

This week we consider the manner as well as circumstances under which an election result may be challenged. As a point of departure, any election result may be challenged by a candidate for the constituency and by a voter in the concerned constituency. This specifically excludes meddlesome interlopers.

A petition may be brought where one contests the election result or alleges that a candidate is disqualified to be a candidate. Petitions against the election of a candidate or based on a disqualification are only triable before the High Court.

A petition may be brought by one person or several persons jointly. The law requires that when one seeks to bring a petition they must give all other candidates an opportunity to be a part of the petition before lodging it. The petition must be signed by the petitioner or where there is more than one petitioner by all the petitioners. This is to avoid having several petitions on the same matter regarding the same constituency.  The democratic process must not be held hostage by a flood of discordant actions. It must be emphasised that a petition can only be brought before the High Court.

That is markedly distinct to other cases such as those concerning the disqualification of a voter, where an application may be brought before a Magistrate Court. A petition may only be brought within 30 days from the day on which the result of the election is declared. Where however, the petition concerns an electoral malpractice, the petition shall be brought within twenty one days of the day in which the election expenses of the candidate affected are returned by the petitioner.

In order to avoid frivolous petitions, the Act requires that a person lodging a petition should pay into court security for costs in favour of the person being challenged. That is meant also, to ensure that when the petitioner loses, the person against whom the petition was made (the Respondent) may readily recover the costs of defending the petition. In any petition made, the security for the costs of the person petitioned against must be paid to the Registrar of The High Court at the time of the petition or within seven days of the lodging of the petition. That includes the security for costs of witnesses summoned by the petitioner. Costs of a petition are borne by the state, not the petitioner.

It is notable that the immediate payment of security may result in hardship to petitioners who have legitimate cases. As such the law provides that security may be given by the petitioner on own recognizance.

What that means, is that the petitioner binds himself together with such sureties as they may be required to furnish to the court, to pay particular amounts of money in the event that the petition fails. The money

will settle the expenses of the person against whom the petition is brought. Not more than four sureties shall be required from the petitioner. These are people who undertake to pay the expenses of the candidate in the event of the petitioner losing.  A petition must be served on the person concerned within ten days of filing of the same. It may be served personally upon them, at his last known dwelling, or at their place of business. Within twenty one days of service of the petition, the Respondent can challenge the adequacy of the sureties. Where the High Court agrees that the sureties, or the security furnished is insufficient, the petitioner may, within ten days of the ruling, furnish adequate security in terms of the court order. Where one cannot pay adequate security, the petition shall accordingly fail.

Every election petition must, by law, be tried in open court. There can be no “in camera” hearings. Parties to a petition are entitled to at least fourteen days notice before the petition is heard. Where it is demonstrated, during a petition, that a particular vote was obtained unlawfully, the High Court may order that such a vote(s) be deducted from the total of votes cast in favour of the concerned candidate.

If a High Court decides that the petition is successful, and that a candidate has not been duly elected, the constituency seat shall immediately be vacated by that person.

The petitioner, or the suitable person, shall then be pronounced elected. Accordingly, not every petition or irregularity, will lead to a bye election. There will only be a bye election where the High Court determines that the Respondent having vacated his seat, no other person can be considered to have been duly elected. Where there are several petitions regarding one constituency, or matter, such petitions shall be joined together and be dealt with as if they are one case. In the trail following upon the petition, witnesses give sworn evidence as they do in civil actions.

Any person who lies to the court commits a criminal offence. A court may call and examine such witness as it deems fit. The privilege against self-incrimination does not apply to witnesses in election petition cases. Where a complicit witness answers all questions to the satisfaction of a court, they may be freed from liability for prosecution.

In deciding a petition, where the High Court considers there were widespread irregularities, a recommendation may be made to the Director of Public Prosecutions for appropriate action.

Chief On Friday



DPP Botswana

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