Gaborone — A three-judge Gaborone High Court panel presiding over election results petitions has proposed drafting of a tentative tool for guiding election material inspection process.
This follows issuance of a court order giving petitioners access to the election material currently the Registrar of the High Court's custody.
The respondents had questioned how the inspection would be done.
First respondent, Independent Electoral Commission (IEC) filed an application with Gaborone High Court asking that petitioners be denied access to the election material on the grounds that their request was without substance.
However, the court on Wednesday dismissed the IEC's application.
Delivering the ruling on behalf of the panel comprising justices Gaopalelwe Ketlogetswe, Itumeleng Segopolo and Omphemetse Motumise, Justice Motumise directed all parties ( petitioners and respondents) to be present during the inspection of the material in respect of all election results petitions in question.
The court also directed that the inspection be done on or before January 21 by noon.
The election material to be inspected is in relation to petitions by Noah Salakae, UDC Ghanzi North parliamentary candidate, UDC Gaborone South council candidates being James Matlhogojane (Selemela Ward), Olefile Motswasele (Naledi Central), Olebogeng Kemelo (Bontleng Ward) and Entebetse Boitshwarelo, a council candidate for Mmashoro Ward in Serowe West.
Opposing the petitioners' request, IEC lead counsel Advocate Andrew Redding said it was not enough for the petitioner to only say there was an irregularity without specifying that the election process was not in compliant with general practice to an extent that it affected the outcome.
"Prove beyond doubt that that a specific non-compliance has occurred," said Adv Redding.
"We are not saying an election material can never be looked at, our contention is how and when that can be done," he said adding a proper case has not been made to warrant inspection.
Adv Redding said the court must first establish whether granting access to the material would not be in violation of electoral process secrecy.
He advised the court to be cautious about giving way to a fishing expedition saying there was likely to be interference with the material.
"There is no primafacie case to warrant an inspection," he said.
Concerning Mr Salakae's petition, he said the primary issue of contention was the suspected missing box and therefore the "application does not allow the petitioner to examine the content of the boxes".
Arguing for dismissal of the petitioners' application, second respondents' (Botswana Democratic Party) attorney, Busang Manewe said: "They have not substantiated the relief that they seek from this court."
Justice Ketlogetswe interjected Counsel Manewe's 79 (1) of the Electoral Act.
Responding to Justice Ketlogetswe's query, Mr Manewe said there was no provision in the Electoral Act allowing for inspection of the material without having boundaries.
Mr Manewe also contended that the proposed inspection be done in the presence of IEC officers as they were the experts in handling such material. The petitioners' lead attorney, Advocate Duma Boko said according to section 79 of the Electoral Act, stated that the IEC mandate ended after announcing elections results, sealing the boxes containing the election material and delivering them to the registrar.
"Therefore our requests to inspect the election material are directed to the Registrar of the High Court, who is given powers by the law to be the custodian of the material," said Adv Boko.
In response to a question from Justice Segopolo, Adv Boko said the inspection would only be limited to the constituency or ward being contended.
He cited issues of contention raised by Mr Matlhogojwane, Mr Kemelo and Mr Motswasele regarding voters' rolls saying they warranted inspection of the rolls.
Adv Boko said the court would only participate in gate keeping as well as directing and determining what was relevant to the petitions.
He said inspection of the marked ballot papers would not in any way reveal the identity of the voters.
"There is nothing to fear, we are restricted by what is contained in our petitions. The petitions are well defined and already before court and so we cannot vie away from what is contained in them.
We submit that petitioners served notices on the registrar, who is the custodian of the election material and has not raised any complaint. The IEC are at liberty to attend the inspections," he said.
Source : BOPA