Although she waged a spirited campaign, Dr. Pelonomi Venson- Moitoi’s presidential bid was littered with many faultlines that culminated in her last minute pullout to the dismay of multitudes of BDP faithful.
The nation’s hope and anticipation had built over time on who would win the historic presidential race. The campaign was tough and at one point involved legal action in which three judges recused themselves to avoid any semblance of bias or perceived relationship with any of the parties.
What gave rise to the court case is the fact that Moitoi had submitted a list of people that she said were delegates to Secretary General, Mpho Balopi in compliance with Article 29.3 of the BDP constitution. Balopi received Moitoi‘s letter accompanied with names of her 50 delegates but he noticed that 26 of them were Councillors and therefore not delegates.
Balopi told Botswana Guardian that he wrote to Moitoi that, “according to our reading of Article 26.4 of the constitution and also the legal opinion that the party had sought from the party lawyers, Councillors are not party delegates and therefore once those people are removed from the list, it means she does not comply”. Moitoi was then advised to comply, and to do her due diligence to ensure that people that she is submitting are delegates.
Balopi said after receipt of that letter, an urgent application, “we were served on Wednesday afternoon and required to be in court at 8; 30 am the next morning. “The application was bulky, which led to the attorneys working the entire night to respond and actually had to call me as I was just leaving for Kang to come back so that I could give them an affidavit.”
Three weeks prior to the party writing to Moitoi, the party had obtained legal opinion that the only delegates template by Article 29.3 and 29.3.1 are delegates as defined by article 26.4.2 of the BDP constitution. The attendees of the national congress are all members of the national council (Article 27.3) and they are: Members of the Central Committee, MPs of the party, all regional chairpersons, all branch chairpersons and their secretaries, all members of the inner executive committee of the Youth, Women’s wing executive, one councillor from each branch, while members of the sub committees of the central committees may attend as observers.
The second group of attendees is eight (8) delegates from each branch of the 57 constituencies bringing the total to 456 delegates as well as all Councillors. All the above have voting rights. Each constituency has to bring observers.
It was on the strength of the legal opinion that Moitoi was advised in her list that at least 26 were not delegates in accordance with the BDP constitution.
The Party lawyers raised a number of points in limine and argued them in court, which acceeded to three points being; that, the matter was not urgent as Moitoi had known as far back as 17th December 2018 that she was going to contest. She has been a Central Committee member for long, she knew the process and it ought not to have taken her by surprise that the rules were the ones that are in place. She argued that the constitution does not provide rules, and in court it was demonstrated that there were rules.
The post of a party president is that of a member of the Central Committee in accordance with Article 28, and the constitution provides for elections of central committee members with the difference being while the elections for CC are done every two years, the election for president is held on elections year only. The second point Moitoi had not demonstrated that she had locus standi in court showing that she has a demonstrable right to be before the court.
The confusion arose from the fact that BDP constitution states that for one to qualify as a candidate for the post of the presidency for the party, one must also qualify to be president of Botswana under Article 29.3.3 of the constitution. The constitution states for one to be president of Botswana one must be a citizen by birth or descent. In her founding affidavit she did not state whether she is a citizen by birth or descent instead she only stated that she is a Member of Parliament. The judges ruled that Section 33(1) of the Botswana Constitution state that a person shall qualify to be a president of Botswana if he/she is a citizen of Botswana by birth or descent.
Although there were arguments on the definition of delegate, the court did not rule on it because it was raised as one of the points in limine. Before the court process Moitoi’s lawyers had indicated that they would like to explore the possibility whether the matter could be resolved amicably and they requested to meet with President Masisi. Balopi gave the go ahead and the president was willing to meet them. When the case was set to resume at 2pm the meeting had been set for 11.30. The president and his team waited for about an hour. The president extended an olive branch that although Moitoi’s 26 Councillors are not delegates, for the purpose of the selection the party can accept them as delegates.
Moitoi demanded to be given a voters’ roll but Masisi told her that he also does not have it, however, Balopi can provide it so that she has time to inspect it before the election. Moitoi’s other concerns included wanting to know who the election commissioners were and to be assured of the fairness and transparency of the elections. She was assured there will be international observers, voting will be done in the presence of observers, media and diplomatic corps.
There would also be verification before and after reconciliation.Moitoi requested for congress to be postponed to July. The party told her that is not possible as people are already in Kang. Further there are rules that she could have followed if she wanted the congress postponed. In Kang the Commissioners called for the names of both Masisi and Venson, but the latter did not confirm her candidacy as she had withdrawn.