20 Oct 2024

The Umbrella for Democratic Change (UDC) and 10 others' applications to interdict the appointment of the Commissioners of the Independent Electoral Commission (IEC) serves only to create a constitutional crisis.

A lawyer representing the Attorney General and Judicial Services Commission (JSC), Advocate Thembeka Ngcukaitobe said on Friday before a panel of three judges of the High Court.

“There is in fact no case. This is a case with zero prospects of success,” Adv. Ngcukaitobe said, dismissing the UDC and ten others’ arguments for interdicting the appointment of the commissioners pending a review application.

He said should the relief sought by the applicant be granted, there would be no mechanism in place to take the country to the October 30 elections, as there would be nobody to perform the IEC functions.

Adv. Ngcukaitobe dismissed the applicants’ reasoning that JSC could appoint interim commissioners as a remedy, saying such was not part of their notice of motion.

“You cannot interdict with your relief in the back pocket, you must play your cards openly,” he said, adding that the applicants were now litigating by ambush.

Notwithstanding such, he said even the law did not allow the IEC to appoint interim commissioners.

He said the constitution regarded selection of the commissioners as a political decision and JSC only came in as a remedy, as the constitution anticipated that some would go to the All Party Conference with their political differences and squander an opportunity given.

Adv. Ngcukaitobe further said the applicants argued that should the interdict relief they sought fail, they would suffer an irreversible harm.

He said such was surprising as the same applicants had a review application before the court, which showed they had other alternatives and other alternatives could be to challenge the elections.

Further, Advocate Ngcukaitobe said the applicants argued that the commissioners would not be independent as they were appointed by JSC, whose members were mostly appointed by the President who was a member of the ruling party.

He said that reasoning showed that the applicants seemed to confuse independence and appointment, adding that even if the appointment of commissioners was unlawful, they could still make independence decisions as per the dictates of the law.

He said the relief sought by the applicants had no prospects of success, impractical and there were clear alternatives the applicants could pursue if they were rejected by the court.

Earlier, attorney for the applicants, Mr Wanano Lumbile said it was their plea that the current status be frozen, as such would protect them from an unlawful election process as the commissioners were unlawfully appointed.

“The harm that we envisaged cannot be repaired,” Mr Lumbile said.

He said the applicants were not seeking the postponement of the elections, adding that as a remedy, JSC could appoint interim commissioners as the constitution did not inhibit such.

Mr Lumbile said applicants’ discontent was that the All Party Conference recommended names which were disregarded by JSC in appointing commissioners.

Another applicant attorney, Mr Chibuya Lowani said the constitution created All Party Conference on equal footing where each political party was entitled to one vote during decision making.

He said the wisdom of the legislation was that the decision making would not be unanimous but through simple majority, adding that such was to avoid a situation where a party would have veto power.

He said all parties present at the All Party Conference meeting which generated 10 names to be considered for appointment were in agreement except that the ruling party wanted the names to be 26.

As such, he called on the court to promote democracy when applying its mind as envisaged by the constitution.

The case is before Justices Chris Gabanagae, Michael Leburu and Dr Ookeditse Maphakwane.

The applicants in the matter are UDC, Botswana Congress Party, Botswana National Front, and Alliance for Progressives, Botswana People’s Party, Botswana Patriotic Front, Botswana Labour Party, Real Alternative Party, Botswana Movement for Democracy, Botswana Republican Party and MELS Movement of Botswana. ENDS