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Home » News » Analysis » Problem with our Elections: The President picks election dates

Problem with our Elections: The President picks election dates

Publishing Date : 27 July, 2015

Author : DR MONAGENG MOGALEKWE

On 13 November 2009, The Philadelphia Inquirer carried a headline that read ‘Palestinian vote is postponed’. The paper quoted an Associated Press report that the Palestinian Election Commission (PLC) ruled that the scheduled 24th January 2010 elections should be postponed because of opposition from Hamas, which controls the Gaza Strip part of Palestine.

On 15 November 2009, the Christian Science Monitor carried an interview with a Canadian elections and political expert who stated that the PLC had always maintained neutrality and an arm’s length from politics, and that their position was ‘if we can’t have elections everywhere, then we cannot do our job’ if Hamas is not going to participate.

On 21 January 2008,Mmegi, one of Botswana’s independent newspapers, carried a headline that read ‘IEC awaits by-election dates’. In an interview with the newspaper, the Secretary of the IEC was quoted as saying that his office was yet to receive dates for upcoming bi-elections from the Minister of Local Government.

In the same interview, the IEC Secretary also noted that his office was also waiting for the President to announce the dates for bi-elections for two constituencies whose parliamentary seats were recently left vacant by the resignations of parliamentarians.

These are very contrasting reactions concerning the date of elections from two EMBs from two different jurisdictions: the first from Botswana, a country often referred to as an exemplar of democracy in Africa, and the second from occupied Palestine.

Whilst Botswana’s EMB has to wait to hear from the Executive before it can make preparations for a pending election, the Palestinian’s EMB, of its own volition, decides to postpone the elections in order to accommodate the opposition!

In Botswana, the choice of date for the Election Day is one of the contentious issues that confronts Botswana’s electoral management system. This problem arises from Botswana’s amended Electoral Act.

According to Section 34 of the Act, for the purpose of general elections to the National Assembly, or a bi-election, it is the President who shall issue a Writ of Elections addressed to the returning officer of each constituency, fixing the place, day, and hours between which the returning officer will receive nominations of candidates, and the day for taking any poll which may become necessary.

In the case of the elections of representatives to local government, the Act states that it is the Minister of Local Government who shall issue an Election Instrument fixing the place, day, and hours between which the returning officer will receive nominations of candidates and the day for taking any poll which may become necessary. It is contended here that if the IEC is to fulfil its mandate to ensure free and fair elections, then it should be the IEC, and not the State President or a minister, who should issue writ of elections.

According to Tshosa (2007) this is another instance of the unfairness, rather than the unfreeness, of the elections process in Botswana. As Tshosa posits, the issue at stake concerns the fairness of the election rather than the freeness of election because the freeness of elections in Botswana has never really been a problem: every eligible voter can freely participate in the elections, provided he/she has registered as a voter. The Electoral Act, as it currently stands, clearly advantages the ruling party by giving the prerogative to issue elections writ to interested parties.

This can be demonstrated by examining, for example, a bi-election in 2013. The facts of the matter are as follows: following a dispute between the ruling party candidates about the outcome of the primary elections, one candidate went to the High Court to seek an injunction to stop the other candidate from being registered as the ruling party candidate. The High Court agreed with the applicant and issued a Court order barring the other candidate from registering as a candidate.

Pursuant to the Court Order, the Returning Officer refused the nomination of the ruling party candidate. The ruling party again returned to the High Court to contest the IEC refusal to accept the registration of its candidate, but lost with costs.

When the IEC announced that it would go ahead with the elections, even without the ruling party candidate, the ruling party Electoral Board Chairman was quoted as saying that his party still had hopes of contesting the bi-election because President Khama has the powers to withdraw the bi-election writ and issue a new one. In an urgent application to the Court of Appeal, the ruling BDP asked the Court to review and set aside the IEC’s decision to refuse to accept the nomination papers of its candidate.

Then, on 22 November 2013, a petition signed by about 1600 people from the constituency was handed to the District Commissioner, calling for the nullification of the existing writ and for a fresh writ for the bi-election to allow the ruling party to participate.

A day before the bi-elections, the President invoked section 46 of the Electoral Act, and postponed the bi-election from 23 November 2013 to 25 January 2014, on the basis that it was in the public interest to do so. The relevant section states that if the President is satisfied that it is in the public interest, he may by proclamation adjourn the poll to some other day.

On 11 December 2013 the Court of Appeal dismissed the BDP case with costs, meaning that the election would go ahead without the BDP candidate. When the bye-election eventually took place on the 25 January 2014, it was won by the opposition.

Botswana Congress Party candidate, much to the chagrin of the ruling BDP. What is interesting is that, throughout this saga, the IEC was completely marginalised. But a forensic report by a South African-based Forensic Document Consultant exposed the petition as fraudulent as some ruling BDP political activists had forged signatures of ‘petitioners’, hoping that the postponement would somehow assist the party to field a candidate.

Conclusion

The foregoing analysis of Botswana’s post-independence elections history is a departure from the traditional focus on the freeness of elections that has, over the years, been given considerable attention by several commentators and observers.

The analysis seeks to draw attention to factors critical to the fairness of elections. It is argued that, whilst elections have always been free to the extent that every eligible voter could vote, Botswana’s EMB is powerless to level the electoral playing field to ensure that elections are also fair.

The legal and political framework within which Botswana’s EMB operates is such that it would not have the ability or leverage to create a level playing field by ensuring that elections are also fair.

The most critical issues offairness raised in the analysis include the following: (1) Botswana’s EMB reliance on public officers who are bound by the Public Service Act to be loyal to the government of the day, (2) lack of equal access to public media and the abuse of public officers working for the state/public media as propagandists for the ruling party and (3) the choice of election date which is the prerogative of the President or his minister and therefore advantages the ruling party.

With regard to access to public media, which dominates the country’s media landscape, it has been pointed out that the state/public media are located in the Office of the President, and are part of the Executive arm of government.

Because of this arrangement, the ruling party is given extensive coverage, and the state/public media effectively ‘merchandises’ the ruling party, whilst the EMB remains impotent and unable to ensure equitable access of all political parties to these state resources.

The growing consensus is that the fairness of an election will require, inter alia, equal opportunity for all political parties (not just the ruling party) to publicly owned resources, including the media, to effectively sell or merchandise their products in the form of party manifestoes.

With regard to the elections dates, it has been pointed out that the election dates for both the general elections and bye-elections of members of parliament and local government are not set by the EMB, but by the Executive, who would obviously have a vested interest in the outcome of such elections.

The choice of the election date by the Executive gives the ruling party undue advantage, as this amount to using inside information. It can be argued that in establishing the EMB Botswana has not really made a clean break with the past.

The transition from government supervised elections to an independent electoral management model has not been fully completed. In this regard it can be argued that elections in Botswana will probably continue to be free, as has been the case for the last 11 general elections, but the elections will not necessarily be fair.

Simply put, the Botswana EMB can only ensure that elections in Botswana are conducted efficiently, properly and freely, but cannot deliver on the fourth component of its mandate, namely, that elections are also conducted fairly.

In this regard it is important to observe that neither the Botswana Constitution nor the Electoral Act expressly guarantees the independence of the IEC, something that is regarded by many as an unfortunate oversight, but which, on the basis of the foregoing assessment, may very well have been by design.


Article extracted from Monageng Mogalakwe (2015) An assessment of Botswana's electoral management body to deliver fair elections, Journal of Contemporary African Studies, 33:1,105-120, DOI: 10.1080/02589001.2015.1021210

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