Just a few days after Court of Appeal's (CoA) justice Singh Walia set a date for hearing of the Umbrella for Democratic Change (UDC) election appeals, Botswana Democratic Party (BDP) has called for the cases to be thrown out.
Through their lawyers Bogopa, Manewe Tobedza and Company, the BDP has once again raised preliminary points of law for the appeals not to proceed.
The BDP holds the view that the appellate court has no jurisdiction to entertain the UDC appeals. “The Court of Appeal does not have the jurisdiction to entertain the appeals of the following appellants,” read BDP documents filed in court on Friday.
The appeals the BDP wants thrown out are those brought by UDC president Duma Boko, Masego Segokgo, Victor Phologolo, Nelson Ramaotwana, Mpho Pheko, Ketlhalefile Motshegwa, Moagi Molebatsi, Olebogeng Watshipi, Mohammed Khan, Onthatlhile Selatho, Micus Chimbombi, Patrick Molutsi, Haskins Nkaigwa and Sam Digwa.
The BDP seeks relief that the appellants’ cases should be dismissed with costs of two counsels.
The party argues that the appellants purport to approach CoA as of right, which in terms of Section 106 of the Constitution is expressly excluded.
According to the lawyers, in terms of Section 106 of the Constitution, an appeal shall lie as of right to the CoA from any decision of the High Court, which involves the interpretation of the Constitution, other than a decision of the High Court under Section 69 (1) of the Constitution.
In addition, the BDP states that Section 69(1)(a) of the Constitution empowers the High Court with jurisdiction to hear and determine any
“By virtue of Section 106 of the Constitution, section 10 of CoA Act CAP 04:01 is also inapplicable. Additionally, the above listed appellants cannot avail themselves of the provision of section 11(a) to (e) of CoA Act which provisions confer CoA with jurisdiction to entertain appeals by leave.”
Furthermore, the BDP lawyers argue that there is no statute that confers CoA with jurisdiction to entertain these appeals and therefore the decisions of the High Court in the matters cannot be interfered with.
“No appellate court has an inherent jurisdiction to take appeals from judgments and orders of a lower court. Such jurisdiction can only be conferred by statute, but none has been conferred on CoA with respect to these matters,” they argued.
Consequently, the BDP states, the decisions of the High Court with respect to the petitions of the above appellants are final and cannot be appealed.
However, the BDP lawyers state that CoA could only entertain the matter of Aubrey Ramatsebanyana, which appeal relates to a local government election to the extent that the jurisdiction to entertain an appeal for a council seat is not excluded by section 106 of the Constitution.