Two out of a panel of three judges in Francistown yesterday ruled against the Umbrella for Democratic Change election petitioners.
Haskins Nkaigwa, Sam Digwa and Micus Chimbombi had petitioned the Independent Electoral Commission, Botswana Democratic Party Secretary General Mpho Balopi and the Vice President Slumber Tsogwane respectively.
Justices Tshegofatso Mogomotsi, Phadi Solomon and Bashi Moesi read the ruling yesterday at the Francistown Regional Magistrate Court.
While both Mogomotsi and Solomon were unanimous in the ruling, there was however a dissenting judgement from Moesi.
In dismissing the UDC petitions, the two judges unanimously agreed that there was no compliance from the three petitioners.
They stated that without a proper description of a locus standi (the right or capacity to appear in court), there’s a fundamental irregularity in determining the right of audience before court.
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Reading the judgement, Mogomotsi reiterated that an applicant or litigant who fails to make averments (statements) which are necessary to show that he has locus standi does so at their own peril, for it forms the very basis upon which his presence before court draws its life.
“The general rule is that an applicant must stand or fall on its founding affidavit and the facts alleged therein,” Mogomotsi said.
She said the locus standi of IEC who most of the allegations and the petitions are directed has not been adequately provided to satisfy the court regarding its legal capacity to sue or to be sued.
“The fact that IEC is a creature of statute does not automatically clothe it with the requisite locus standi. Not all statutory bodies have the right to sue or be sued in their own names,” she said, adding that it’d be erroneous and presumptive of the court to make such an assumption.
She further said it was not the court’s duty to comb through for papers filed of records in search of the parties locus standi.
However in his minority ruling, Judge Moesi argued that locus standi is outdated and no longer presents an insurmountable challenge to litigation which has public interest attached to it.
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He ruled that the court should proceed to deal with substance of the case.
He said this would be in the interest of justice, the concern of the public and the upholding of the rule of law. Moesi said an election petition falls under the category of constitutional litigation and carries with it considerable public interest.
“In matters of public litigation this court would be remiss and indeed guilty of committing an absurdity if it denies a genuine and bonafide litigant access to justice on a weak argument of lack of standi by the IEC when the constitution clearly assumes that such action should from time to time be taken against such a body,” he said.
The judge said in arriving at his ruling he was guided by the growing jurisprudence in the country which has established the legal positions that the provisions of the rules of court were not adopted by the Electoral Act and were of no application to the the petitions and also that the power of the courts to consider the irregularities of the elections was not derived from any inherent jurisdiction nor did it arise from common law, but was to be found within the corners of the Electoral Statutes.
“Court shall proceed to deal with substance of the case and costs awarded in favour of the petitioners,” Moesi observed although his ruling was defeated by the views of his fellow panelists.