The 2019 General Election generated the largest election petitions known to history, since the birth of our nation decades ago.
Those petitions have come and gone, with all of them dismissed with costs, either at preliminary stages or upon hearing of the evidence.
Four panels of three Judges heard the petitions at the High Court and a panel of five judges of the Court of Appeal (CoA) heard the consolidated appeals. In respect of the local government election petitions, there is still a possibility that those may be appealed at the CoA.
Even before the ballot was taken in October, the country experienced a number of unprecedented objections taken against voters in terms of the Electoral Act, many of whom had already been earmarked by their respective parties as potential candidates. Many of these objections, whilst taken at the magistracy level, found their way to the High Court, with only one going up to the CoA before a five panel bench.
Thus the tone had been set for what was to come of the 2019 General Election and what was to subsequently follow. This is also true in respect of the Umbrella for Democratic Change (UDC) with the Botswana Movement for Democracy (BMD). The courts became an integral part of the elections, and the electoral journey that the country undertook. They were to be called upon, in more than 14 parliamentary electoral outcomes, to certify whether or not there was a vacancy and a proper vote had been taken.
This article focuses on the Administration of Justice (AoJ) and how the percentage of High Court matters decided unanimously hit its lowest level during these election petitions. In fact, on the contrary, the High Court recorded the highest ever dissents in its history.
There is thus everything historic about the 2019 elections. The rates of unanimity may well be over and one hopes that this is not only limited to election cases. The four panels have proven to be an unpredictable court. It suggests to me that it is not through coalitions or regular allegiances [of judges] that the decisions of the Court are being made. It is thus reassuring that Judges were bringing their independent intellectual firepower to the task at hand. This is not suggesting that has not always been the case.
And because of the highest number of dissents and the context in which they happened, the 2019 elections have exposed the hypocrisy behind forum shopping by those who stood against it, and put into sharp focus the administrative powers the Chief Justice (CJ) has or purports to have. It is argued that the time may well have come for those powers to be challenged and/or the manner of their exercise by the CJ must be highly circumscribed to avoid abuse arising from supposed unfettered discretion.
The dissents also reveal a striking pattern of semblance. The panels were built around those Judges who had been picked electronically at the Registry upon filing of the cases.
The other Judges were directly appointed by the CJ having determined that the election petition proceedings be heard and disposed of by or before a panel of three judges. That power under Section 6 of the High Court Act does not say who those Judges must be or by who they should be picked. All that the CJ is required to do is determine the number of the Judges who should hear the matter. There is no plain statutory provision in our laws than Section 6 of the High Court.
The panel of Judges were Justices Barnabas Nyamadzabo, Godfrey Nthomiwa, Ookeditse Maphakwane (Panel 1); Justices Bashi Moesi, Phadi Solomon, Tshegofatso Mogomotsi (Panel 2); Justices Omphemetse
Motumise, Gaolapelwe Ketlogetswe, Itumeleng Segopolo (Panel 3); and Justices Michael Leburu, Mercy Garekwe, Godfrey Radijeng (Panel 4).
The first panel is dominated by Francistown Judges. The electronic system had picked neither of them as the election petitions were either filed in Lobatse or Gaborone. Where you file in either of these places, you pick only Judges sitting in those courts and not Francistown. So clearly, Justices Nyamadzabo and Maphakwane would have been handpicked by the CJ. We discuss the criteria of choice by the CJ below.
There is so much secrecy about how these panels were constituted, and many conspiracy theories have been suggested. On registration of the first batch of petitions, the Registry did not endorse the stamp on the cases, thus leaving open the Judge or Judges to be allocated.
What is clear is that only a handful of the Justices were picked by the system. It has been suggested in the corridors of the AoJ that as the cases kept piling and before they could be electronically assigned to different Judges, the exercise was stopped and panels of Judges were configured and assigned certain cases. For example, the cases of Haskings Nkaigwa and Micus Chimbombi were removed from the Ketlogetswe bench. This is the only panel that refused to have cases decided on technicalities.
Of importance to note in the configuration of the cases is that Judge Segopolo who had previously expressed himself as conflicted in the Venson-Moitoi case against the Botswana Democratic Party (BDP) was empanelled. The Judges who had been picked without any human element were thus neutralised under Section 6 power on what appears to be personal choices and on the prerogative and pleasure of the CJ.
The criterion by which the CJ handpicked these Judges is not known and the CJ has not shared it with anyone. It is unclear whether it is based on the ‘most suited’ Judge, most qualified in terms of age or experience, or whether one is the most senior Judge. On the contrary, senior Judges were overlooked. What this does (the absence of disclosure or clarification) is to invite a wide range of considerations by the CJ, which may be totally irrelevant to the question of suitability and seniority. In fact, it is not foolhardy to suggest that the personal preferences of the CJ may come into play. The CJ approaches these Judges alone and under circumstances unknown and undisclosed. It is not known what the discussions are between the CJ and the Judge(s) approached.
The electronic system for allocation of cases followed an amendment to the High Court Rules after the then CJ accused lawyers of forum shopping and some Judges of permitting themselves to be forum shopped.
The accusation as related to Judges almost lead to a civil action against the CJ. What is not accounted for is why it is believed that attorneys can forum shop by picking a Judge who is favourably disposed to their cause of action and Judges may be willing participants, a conduct which both the CJ and the Judge President of the CoA are immune from. In terms of the CoA Rules, the Judge President is allowed to single handedly handpick which Judges are to hear appeals. Any remote possibility of forum shopping must be minimised, or at the very least, the human element as to who will be allocated which case must be removed altogether.
There cannot be any argument about our courts’ ability to forge a majority coalition with other Judges to decide a matter, but what one will equally not miss in the election petition is that Judge Ketlogetswe has been the court’s great dissenter, and that he did not co-author an opinion with any of his colleagues, even once. This speaks of a level of judicial isolation not before seen in the existence of the court. Ketlogetswe seems to have deliberately adopted the practice of sole authoring his opinions, virtually ensuring a diminished level of agreement with his colleagues.
Just as the nation reflects of the 2019 general elections chapter, we may not have to look too far for reform. The solution and the problem are co-residents.
*Mogakolodi Motshwaraganyi is a pen name for our legal specialist writer. He is an attorney in private practice.