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Where is BMD’s court case?

Publishing Date : 11 December, 2018

Ndulamo Anthony Morima

Even prior to its expulsion from the Umbrella for Democratic Change (UDC) on 25th October 2018 the Botswana Movement for Democracy (BMD) had, since its suspension, threatened court action were it to be expelled.

In fact, even during its suspension, there was talk that the BMD was considering approaching court on an urgent basis to apply for the suspension to be set aside and to interdict any envisaged disciplinary action by the UDC. So, when the BMD was finally expelled on 25th October 2018 there was expectation in others and fear in some that it would approach the courts, even on urgency, to apply for its expulsion to be set aside.

So imminent was the likelihood of such court action that many feared that that would result in a protracted legal battle that would only be prejudicial to the UDC’s prospects of attaining state power in 2019. Consequently, some, including me, were of the view that in the event of such court action the Botswana National Front (BNF) and Botswana Congress Party (BCP) should leave the UDC and form a bilateral coalition for the 2019 general elections.

This, it was opined, would save the Opposition project since the bilateral coalition was likely to be attractive to the Alliance for Progressives (AP), something that could give birth to a united alternative to the shell that the UDC would become if it remained with the BMD and possibly the Botswana Peoples Party (BPP). However, to date, more than one month since its expulsion, the BMD has not commenced legal proceedings as it threatened. Considering that we are about to enter the festive season, it is unlikely that the case, if any, will be registered this year.

Of course, considering the fact that if the BMD approaches the courts it will be by way of a review application, which should be commenced within four (4) months of the event giving rise to it, the BMD still has about three (3) months on its side. But, one can not help but wonder why the BMD would wait that long in view of the limited time remaining before the 2019 general elections which are likely to be held in October 2019, about eleven (11) months away.

When the BMD opted not to appeal its expulsion to the National Congress (NC) it was understandable, politically, because the chances of it succeeding in such an appeal were close to nil. There was, in my view, almost no way the BMD, even with the support of the BPP, would win an appeal at a NC dominated by the BNF and the BCP not only in numbers but also in political ideology.  

But it is not understandable why the BMD has, to date, not approached the courts. It cannot be an issue of lack of legal preparedness because the BMD, led by Advocate Sidney Pilane, himself a legal hawk, has enough legal arsenal to have waged an attack by now. After all, the BMD had, in preparing its submissions to the UDC against its expulsion, traversed most of the legal arguments it would raise during the review application at the High Court.

It can also not be an issue of lack of funds to retain an Attorney because with Advocate Pilane, and of course other Attorneys who are members of the party, the BMD needs not outsource attorneys to represent it. What then could be the reason for the delay? Could it be because the BMD never intended any litigation in the first place and was using the threat of court action to scare the UDC into not taking action against it.

Or it is because the BMD realizes that it has limited prospects of success in the matter and, therefore, fears the embarrassment that losing the case can bring it as a party and Advocate Pilane personally? It would be remembered that at some point the media portrayed the UDC/BMD fracas as the battle of the advocates- UDC president, Advocate Honourable Duma Boko, and BMD president, Advocate Pilane.

Surely, none of them would want to lose such a potentially historic case, lest their reputation as Advocates of note be irretrievably tainted. Advocate Pilane, for instance, has been praised by his National Executive Committee (NEC) members, including Secretary General, Honourable Gilbert Mangole, as an Advocate of impeccable record. How then he risk it at this potentially historic moment?

Advocate Honourable Boko, on the other hand, has, following the Central Kgalagadi Game Reserve (CKGR) case in which he was part of the team defending Basarwa against forcible relocation by Government, built a reputation as a Human Rights attorney. Or it is because, for strategic reasons, the BMD wants to commence the proceedings in early 2019 so that the matter drags through the courts in 2019, something which would adversely affect the UDC’s campaigns.

In my view, realizing that it is likely to lose the court battle, some in the BMD leadership may choose to hurt the UDC by using the uncertainty caused by the envisaged court action to minimize its prospects of success in 2019. But, what benefit will this be for the BMD? In the first place, in the event of an ensuing court case, the BMD will, just like the UDC, be adversely affected politically. The only beneficiary of such a protracted legal battle will be the Botswana Democratic Party (BDP).

Can the BMD be so incensed by the UDC that it can orchestrate a plan that would effectively see the BDP, its supposed real nemesis, retain state power in 2019? What Opposition party, especially which defected from the very ruling party, can do that? Would that not bring credence to the theories that have been making the rounds that some in the BMD leadership, including Advocate Pilane himself, are emissaries of the BDP who have been planted to destroy the Opposition project?   

The UDC’s decision not to expel BMD Council candidates, allowing them to represent the UDC in 2019, may also have thrown the spanners into the works for the BMD, thereby causing it a dilemma in dealing with the UDC. This was a political master stroke by the UDC. It was political curve ball which, if the BMD did not handle with care, was likely to sow seeds of division within the BMD, especially if it were to expel the concerned Council candidates for abiding by the UDC’s decision.

Prior to its expulsion, especially during its suspension, the BMD had enhanced its campaigns. It was all over-in freedom squares, bus ranks, etc. Its publicity functionaries had almost monopolized the air waves. But, following its expulsion it remained in the public space for only about a week. Thereafter it, for all intents and purposes, disappeared, not so much into political oblivion, but into conspicuous absence and silence.



Do you think the courts will help put the UDC, BMD impasse within reasonable time ahead of the 2019 General Election?