The Independent Electoral Commission (IEC) has defended its decision not to register Ignatius Moswaane of the Botswana Democratic Party (BDP) to contest the Francistown West by-election.
The by-election is billed for the 23 November 2013. Arguing before Justice Terence Rannowane on Wednesday, the IEC lawyer Simwe Mwinya from Minchin and Kelley law firm said one of the first principles of the rule of law is that a court order must be obeyed while it is extant. “It was the existence of a court order in the form of a rule nisi that informed the decision of the IEC not to accept the nomination of Moswaane,” he said, adding that it is only a court that can set a court order aside.
Mwinya was referring to the 31st October 2013 court order by Justice Tshepo Motswagole, which ordered the BDP to address the appeal by Whyte Marobela who lost to Maswaane in the party primary election. The court order prevented Moswaane from submitting his nomination to the IEC, pending the outcome of the internal appeal process of the BDP. The IEC told the court on Wednesday that on 1 November 2013, when Moswaane submitted his nomination, the BDP may well have concluded its internal appeal process, but the rule nisi had not been discharged. “It is only when the court finally determines the rule nisi application that the IEC would lawfully be able to accept the nomination of Moswaane or any other candidate.”
The attorney pleaded with Rannowane to take time to determine the effect of Motswagole’s court order. “This court order is operational until it’s finalised. Whatever judgement the court (Rannowane) will make will be setting a precedence to say if your name is not in a court order then you can do whatever you want.” Mwinya told the court that the IEC has no interest whatsoever in the identity of the candidates that the BDP or any other party nominates, as long as that candidate may lawfully participate in the elections. “Even if the IEC was mistaken in its understanding of the law, what is clear is that the returning officer acted with the best of motives. Her concern was not with the fortunes of any member of the BDP, but rather with due process and the rule of law.” Fighting in Marobela’s corner attorney Obonye Jonas said they are opposing the review application brought by the BDP and Moswaane.
The BDP has challenged the IEC’s decision in court. Jonas said on the day of the nominations the BDP had not yet complied with Motswagole’s order. Advocate Mark Antrobus argued that the IEC was not under obligation to reject Moswaane. “The IEC by accepting (Moswaane’s name) are not breaching anything. The IEC should not concern itself on whether it will breach a court order or not. By doing so it was taking sides,” he said, adding that it is simpliistic to say court orders must be obeyed. Justice Rannowane will issue judgment on the matter next week Monday.