Though I have always regarded him as a dictator, I never thought there will be a day when President Lieutenant General Seretse Khama Ian Khama will, like such hardened despots as President Robert Mugabe of Zimbabwe, blatantly defy our courts and the Constitution. I was proven wrong when, on 21st November 2013, the Office of the President (OP) announced, through the Acting President, His Honor Dr Ponatshego Kedikilwe, that the Francistown West bye elections have been postponed from 23rd November 2013 to 25th January 2014.
The reasons given by the OP for such postponement are that it is in the public interest that such postponement is made, considering, among other things, a petition of a large number of voters in Francistown West Constituency and the fact that the legal process currently pending before the High Court and the Court of Appeal has not been concluded. In a desperate effort to put Batswana into a lull, the OP states that the postponement does not amount to a withdrawal of the writ of elections and will not reopen the nominations of candidates, which can only be determined by ongoing legal process at the Court of Appeal. Clearly, these reasons do not hold water as shall be argued below.
Firstly, the alleged petition of a large number of voters in the Francistown West constituency. It ought to be asked whether such petition really exists and if it exists how many voters signed it and to whom it was presented, the OP or the Independent Electoral Commission(IEC). Most importantly, that if the petition indeed exists, which voters signed it. One is tempted to believe that if such petition really exists it can only have been signed by followers of the ruling Botswana Democratic Party (BDP) and not members of the opposition and/or Batswana in general.
Assuming that the petition exists; that it was signed by Batswana in general and that it was presented to the IEC which made a recommendation for postponement to the President, it ought to be asked which national law empowers the OP to postpone the elections because of such a petition.Clearly, considering its unfettered access to legal advice, the OP cannot have made such a proclamation without relying on a particular law. I wish to argue that such omission was deliberate since no such national law exits.
Secondly, the alleged legal process currently pending before the High Court and the Court of Appeal. Respect for the rule of law dictates that only a court order, not a pending court case, can set aside another court order.Therefore, for as long as the court order(s) which hold that the IEC was right in refusing to accept the BDP’s ‘nominee’, Ignatius Moswaane’s candidacy for the bye elections have not been set aside by a competent court, no person, including the President, can validly negate them. Using a proclamation to negate court orders as the President did by postponing the bye elections is tantamount to contempt of court and disregard for the rule of law. It is an affront on judicial independence, a tenet which Botswana has until now cherished and protected. By postponing the bye elections the President has effectively overruled the courts and/or made the courts’ rulings ineffective.
Thirdly, the claim that the postponement is in the public interest. This is a desperate effort to avoid judicial review of government action. Clearly, the President has, in the interest of his own party, the BDP and not in the public interest, abused his powers and usurped the powers of both the judiciary and the IEC. The President knows that full well. No wonder he abdicated the task of making this shameful proclamation to the out- going Vice President Kedikilwe who has nothing to lose politically.The President has come to the rescue of the BDP whose administrative blunders would have seen it not contest the Francistown West bye elections.
Fourthly, the assertion that the postponement does not amount to a withdrawal of the writ of elections and will not re-open the nominations of candidates, which can only be determined by on-going legal process at the Court of Appeal. I wish to argue that the postponement amounts to constructive withdrawal of the writ of elections and re-opening of the nominations of candidates. Clearly, the President cannot have made such a politically risky and financially costly decision unless he is sure that the Court of Appeal will rule in BDP’s favour and/or has another plan should the Court of Appeal rule against the BDP.
I wish to submit that the only reason the President used a proclamation to postpone the bye- elections is to make his decision exempt from administrative law and not subject to judicial review. He has unduly clothed an otherwise administrative action with policy so that it is executive action and not administrative action. This is cowardly indeed. If the President believed in the propriety of the postponement, government should have made a court application to grant the postponement.