Botswana: Court Dismisses Mogalakwe Case With Costs

Gaborone — Two of three Gaborone High Court judges Wednesday dismissed the Mogalakwe Mogalakwe election results petition case with costs.

One of the judges holding the majority view, Justice Omphemetse Motumise said the reasons for the dismissal would be delivered on February 27.

Holding the same view, Justice Itumeleng Segopolo said based on the merits of the case, the court declared second respondent, Mr Kesebelwang Gaorongwe of the Botswana Democratic Party (BDP) duly elected.

Mr Mogalakwe of the Alliance for Progressives (AP) had wanted the High Court to nullify the results of the 2019 general election for Shoshong constituency's Mosolotshane/Moralane ward citing irregularities.

Holding the minority view, Justice Gaolapelwe Ketlogetswe said his focus was on the provisions of section 121 of the Electoral Act which say an election petition should be concluded within 90 days.

The Mogalakwe case was finalised on the 90th day.

"I reserve my judgement on the merits on the case and it will be delivered alongside that of the majority on February 27," said Judge Ketlogetswe.

For their part, Advocate Otsile Rammidi of the Independent Electoral Commission (IEC), first respondent and Busang Manewe for the BDP, were of the view that exceeding the stipulated 90 days would render the petition a nullity.

Deliberating on the merits of the petitioner's case, Counsel Fastino Ngandu had submitted that there was an illegal act of canvassing for votes on election day at Moralane polling station in violation of section 113 (1a) of the Electoral Act.

According to evidence led in court, he said, a certain Mr Bajeleng Kaodimba was spotted chatting to potential voters in the queue.

Mr Ngandu also said some voters at Moralane polling station were disadvantaged as they were made to vote under poor lighting.

He argued that election officers failed to extend time to cater for voters who had to flee from the polling station as a result of adverse weather.

Voting stopped at 7:00 pm even though there was a crowd of potential voters waiting at the gate, he said.

Mr Ngandu said at the same polling station, some voters with disability and other challenges, were not given the necessary help by election officers.

For his part, IEC attorney, Advocate Rammidi said the issue that election officers refused to assist people with disabilities was never established.

Advocate Rammidi further said there was no evidence of canvassing for votes.

He further said if a polling agent was prevented from contacing the petitioner/candidate as alleged by some witnesses, it was a serious act of misconduct.

However, he said the polling agent failed to explain why she failed to get in touch with the petitioner.

Further, he said, Mr Mogalakwe's evidence was contradicted by that of his witnesses.

Mr Rammidi said voters were not assisted on the basis of being elderly, but rather because they were incapacitated.

Therefore, the availed evidence did not establish any irregularity in relation to voters who needed assistance in casting their votes, he said.

Meanwhile Mr Manewe for second respondent, said the polling station was closed at 7.30 pm thereby substantiating the extension by first respondent's witnesses.

Mr Manewe said there was enough evidence given by respondent's witnesses that there was enough light in the voting room from a strategically placed Cadac lamp.

Mr Manewe said no voter had delivered evidence complaining about poor lighting.

"Even the petitioner's polling agents did not complain of poor lighting," said Mr Manewe.

On the crowd that had allegedly gathered at the gate and denied the right to vote, Mr Manewe said it was just a group of hot headed hooligans.

As per Mr Dikhuhang's evidence who was the petitioner's witness, a portion of the group intended getting into the polling station to forcefully remove Mr Kaodimba and assault him.

"The other batch intended to unlawfully make its way into the polling room and get away with the ballot boxes," said Mr Manewe.

About canvassing for votes, Mr Manewe said it was only a suspicion and that the allegation was never established.

He therefore argued for Mr Mogalakwe's case to be dismissed with costs.

Source : BOPA

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