The IEC has applied that Ketlogetswe should recuse himself from presiding over the case in which UDC wants its agents to observe and monitor the election registration process. The respondent in the matter is the IEC. The registration process has since been postponed indefinitely after the UDC was granted a rule nisi (a rule or order upon condition that is to become absolute unless cause is shown to the contrary) pending the hearing and determination of its main case (to have its agents observe and monitor the election registration process). The IEC is vehemently opposed to the UDC application saying that no provision in the Electoral Act expressly states that party agents should observe and monitor the election registration process. The UDC still insists that the 2019 elections were rigged by the IEC in connivance with the Directorate of Intelligence and Security to favour the Botswana Democratic Party. All the parties mentioned above deny the UDC allegations. The attorney for the IEC, Otsile Rammidi prayed with the court to stay the proceedings in the matter pending the determination of the joinder application that was filed by the Attorney General (AG). Asked by Justice Ketlogetswe if the applicants have made a formal application concerning his recusal, Rammidi said that the IEC will respectfully do so after the court has finally dealt with the joinder application that was filed by the AG. According to Rammidi, the ruling in the joinder application may have a bearing on how the IEC couches its recusal application. Asked by Ketlogetwe if the IEC has made a formal application for the staying of proceedings, Rammidi said that no application was made to that effect. “We say so because his lordship has said that the joinder application filed by the AG will be heard and determined by another judge,” said Rammidi, to which Ketlogetswe said that there was no formal application before him to stay the recusal application.
For his part, Advocate Duma Boko of the UDC said it was improper for the IEC to move its application for the staying of proceedings by word of mouth instead of using the proper way of filing a formal application. At that point, Ketlogetswe made a ruling that since there was no formal application before him to stay the proceedings, he was continuing with the recusal application. Rammidi said that the IEC premises its application for Ketlogetswe’s recusal on the basis that Ketlogetswe will handle the UDC’s main application, which ruling may put the IEC at a disadvantage, adding that Chief Justice (CJ) Terrence Rannowane has written a letter that two other judges should also preside over the UDC’s main application with Ketlogetswe. Asked by Ketlogetswe, when is a court duly seized with a matter and at what stage was the CJ allowed to empanel judges. In response, Rammidi said that a court will remain a court even when the CJ decides to add more judges to preside over a case. Quizzed by Ketlogetswe if the CJ is allowed to add more judges if another court was already seized with the matter as was in the present case, Rammidi submitted that their position was that the procedure to empanel judges is made when a case is registered and not after the case has been already allocated to a judge to preside over it. Asked which law allows the CJ to add other judges when the case has been already duly allocated to another judge, Rammidi said the procedure as he understood it, is that the cases are allocated to judges at the point of registration. He said the CJ took the decision to add more judges to preside over the UDC vs IEC case because it was matter of utmost public interest after the case was already allocated to Ketlogetswe. Probed by Ketlogetswe if Rammidi so wished to answer, what may have motivated the CJ to empanel other judges, Rammidi said that he was not in a position to answer for the CJ because he was not representing him. Asked by Ketlogetswe if it was correct or not that the IEC wrote a letter to the CJ asking him to empanel judges, Rammidi said that no procedure allows parties to a matter to write letters to the CJ asking him to add more judges to a case that they are involved in.
