Francistown High Court Judge Lot Moroka will deliver his judgement next week Thursday in a case in which Botswana Congress Party(BCP) wants the use of Electronic Voting Machines in the 2019 general election to be declared unconstitutional.
“This is a matter of national importance as it defines the democracy of the country,” Moroka said on Wednesday after listening to arguments from both counsels for BCP, Gabriel Komboni and Matlhogonolo Phuthego and Thato Mojaji of the Attorney General’s Chambers.Moroka said the ruling cannot be made haphazardly as it needs time. With the country’s democracy hanging on a knife edge, the State is desperate to kill the EVM case by having it dismissed on a technicality.In the legal action before court, BCP has cited the Attorney General (AG), Chairperson of the Independent Electoral Commission (IEC) and Secretary to the IEC respectively. On Wednesday Komboni applied for condonation while the AG lawyers filed for dismissal of the case on grounds that BCP has filed late.
Komboni pleaded with court to consider their condonation saying the nine-day delay was a result of failure to find an expert coupled with lack of resources. Komboni said that BCP has prospects of success in this matter.
He said that in terms of the rules, there are three possible orders that the judge could make. “The first one will be to dismiss action, extend period of filing or his Lordship can make an order that the court will see fit in such a circumstance,” Komboni said. He however ruled out dismissal saying that it is a drastic action or alternatively a “nuclear weapon” which should be reserved. The attorney then submitted that the matter involves technical issues which can only be explained better by experts. “The say of experts is critical as EVMs are gadgets that can be tampered with,” he said. Countering the argument the AG’s averment that the State would suffer prejudice if procurement of the machines is delayed and the public is not adequately tutored on their use, Komboni said:
“There is no evidence that the public is craving the use of EVMs. In fact there is a serious distance from public. Prejudice has not been demonstrated.” He pleaded with the judge to grant comdonation.
“Section 32 of the Constitution states that voting should be given by a ballot,” Komboni said elaborating that a ballot is defined by the Oxford dictionary as voting secretly by writing on a piece of paper. He said that the electronic device which the state is so eager to purchase does not provide proof of paper in case people demand a recount. He said that the right to vote can only have a meaning if there is certainty that a vote has been cast and there is proof. Komboni said this verification must be open to the public and the courts to challenge votes if the need arises. He said in the absence of ballot papers to physically check this will be denied. “It offends against the public nature of elections,” Komboni said emphasising that elections still remain the right of voters to ask for recount and if the EVMs are used then that right is rendered irrelevant if there is no paper trail. He said that the plaintiff had received a letter from IEC dated 21st August 2017 which notifies time of general voting period. He said the letter reads: “This serves to inform you that IEC has appointed a period for general voter registration from 3rd September to the 11th November 2018. The notice has been published on the Government Gazette dated 7th September.”
He said that is the only period that the voters will have. He said that under the new arrangement, those turning 18 on the 11 November will by virtue of cancelling supplementary registration, be denied an opportunity to vote. “This is a clear violation of the constitution”.However, Phuthego pleaded with court to dismiss the BCP’s application, arguing that their answering affidavits were not properly filed before court. He said that BCP has only decried that EVMs are susceptible to hacking yet they have not produced proof before court.
Phuthego said that it is not proper for BCP to bring the matter before court and later cry shortage of money and experts. He said by so doing the state stands to suffer prejudice as they do not know when the BCP will have raised enough money as they are saying they are waiting for this and that.
“Application for condonation should be dismissed with costs,” he said.