09 Sep 2019

Botswana Movement for Democracy (BMD) will contest this year’s general election scheduled for October 23 outside the opposition coalition Umbrella for Democratic Change (UDC) following the dismissal of an urgent application by the Court of Appeal on September 9.

The BMD was appealing the recent High Court ruling dismissing their case challenging the legality of their October 2018 expulsion from the UDC, and had pleaded with the Court of Appeal to expedite their appeal, but the bench of Justices Ian Kirby, Isaac Lesetedi and Monametsi Gaongalelwe ruled that the BMD appeal was not urgent.

The court further instructed its registrar to follow the usual steps to prepare the record of appeal and set security for costs.  This will allow for the BMD appeal to be listed for hearing at a later date, with whichever side losing the appeal to bear the costs of the trial.

The BMD had sought to have the appeal heard and a ruling pronounced by September 20, in order for them to participate in the September 21 registration of presidential candidates, as well as the September 28 registration of parliamentary and council candidates as part of the UDC.

In delivering the ruling, Justice Kirby noted that after a full bench of the High Court dismissed the BMD legal challenge of their expulsion from the UDC, the BMD had filed a notice of appeal, urging the court to hear and judge by no later than September 20.

If the appeal was concluded at a later date, it would ‘be in vain, academic and ineffectual’, the BMD had argued, since they would not be able to participate in the October general election as part of the UDC, something they felt were entitled to.

Justice Kirby noted that, as set out by the Court of Appeal in the case of Prinsan Group (PTY) Ltd vs Attorney General and Others, an expedited appeal was an indulgence that would be only granted in the most exceptional circumstances, where serious prejudice would result if the appeal was not immediately heard. Also, Justice Kirby said good and substantial grounds for the indulgence should be proved, and an expedited appeal would only be granted if it was in the interest of justice, and reasonable prospects of success must be shown.

In the case of the BMD, they wanted an expedited appeal concluded by September 20 in order to restore their right as a member of the UDC in order to participate in the selection of the UDC candidate for the presidency of the country on September 21, and put forth the candidature of their own leader, Advocate Sydney Pilane. They would also want to partake in the selection of the 57 UDC parliamentary and 490 council candidates, and put up their own members to be fielded under the UDC banner by September 28, which date has been officially set aside for those nominations.

But Justice Kirby noted that the UDC had countered to the effect that it had already selected Mr Duma Boko as its presidential candidate, and fielded prospective candidates for all the 57 parliamentary and 490 council candidates.

The UDC had also argued that substantial costs had been incurred for billboards, posters, campaign materials and launches of the candidates and a successful BMD appeal would have the effect of creating uncertainty and confusion in the minds of the voting public as to the true identity of candidates.

With the BMD also having registered its own symbol and having fielded alternative candidates, the UDC had argued that the BMD would not be prejudiced whether the appeal is expedited or not since their candidates would still be able to exercise their full democratic right to partake in the election.

The BMD also put it on record that they wanted to partake in contributing to the UDC manifesto, something the UDC had countered by saying it had long been concluded and marketed to the public. Justice Kirby said the only conceivable advantage the BMD had sought from an urgent appeal was to have the political advantage of contesting the general election under the UDC banner and attracting more votes.

“Both the BMD and UDC have been registered as long term bodies, if the BMD is successful when the appeal is finally heard, there will be ample time thereafter, if it is able to do so, to negotiate its status and that of its members in the UDC for the future and future elections,” Justice Kirby said. While the BMD had argued that the UDC had delayed their High Court case by not availing themselves for an earlier hearing, Justice Kirby noted that both parties had ultimately agreed to the August 2019 conclusion of their case.

The key factor, Justice Kirby said, was the impracticality of the BMD appeal, due to the ‘very constricted time’ for the hearing of the appeal, which could prejudice both parties. BMD participation in UDC presidential nomination seemed impractical, as the official process needs a candidate, two seconders and 998 other supporters, voting symbols and other information authenticated by officers of the Independent Electoral Commission and need time to prepare.  Having the UDC and BMD agree on the relocation and parliamentary and council candidate lists at this late hour also seemed impractical, the court noted.

An expedited appeal could possibly give the BMD ‘a victory of principle, which could equally be achieved by an appeal in the ordinary course,’ but such an urgent appeal would ‘cause voter confusion and uncertainty in the 2019 election, which is neither in the interests of justice nor in the public interests,” Justice Kirby ruled. ENDS