22 Oct 2024

Umbrella for Democratic Change (UDC) and other opposition parties have lost a case in which they sought to interdict the appointment of the Commissioners of the Independent Electoral Commission (IEC) pending finalisation of the main application to review their appointments.

Three Justices of the High Court, Chris Gabanagae, Michael Leburu and Dr Ookeditse Maphakwane of the Gaborone High Court unanimously dismissed the application on Monday.

In delivering the judgment, Dr Maphakwane said contrary to the applicant attorneys that the decisions of the All Party Conference were to be taken through a simple majority, the court was of the view that the decisions ought to be unanimous.

As such, he said the Judicial Service Commission (JSC) took the decision to appoint the five commissioners, being Mr Maotoanong Sebina, Mr Uyapo Ndadi, Ms Elizabeth Masire, Mr Thebeyame Tsimako and Ms Wame Thanke after the parties failed to agree.

He said although the JSC was furnished with the outright majority decision of the All Party Conference, it exercised its discretion as enshrined in the law to appoint Commissioners.

Also, he said even if the court was to take a different view, interdicting the appointment of the commissioners was going to render the IEC dysfunctional, which would be of greater prejudice to the public.

As pertaining to the costs, he said although the costs generally follow the outcome, the court would not award cost to any of the parties as this was a constitutional challenge.

The UDC alongside Botswana Congress Party, Botswana National Front, 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 took the Attorney General, JSC, IEC, BDP together with the newly appointed commissioners to the court challenging their appointment.

The UDC and others argued that although the All Party Conference had generated a list that the JSC should consider when appointing the commissioners, the JSC however decided against using the list provided.

Political parties argued that the names on the list were consented to by all parties except BDP, which wanted the list to be increased from ten to twenty-six, a proposal other parties rejected and submitted an outright majority decision to the JSC.

Therefore, when the JSC published its appointed candidates, the opposition parties decided on suing and interdicting their appointments.

However, the respondent reasoned that the decisions of the All Party Conference were taken through a unanimous decision, hence the applicants had no chance to succeed in the main application.

They also argued that the interdict would create a constitutional anarchy, which would leave IEC with no one to discharge its functions ahead of the elections scheduled for October 30.

Respondents also reasoned that the JSC does not have powers to appoint interim commissioners as suggested by the applicants.

The main application to set aside the appointment of the commissioners would be heard next year. Ends