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CoA has no jurisdiction to entertain UDC appeals – BDP lawyers

Publishing Date : 13 January, 2020

Author : UTLWANANG GASENNELWE

In an interesting turn of events, the Botswana Democratic Party (BDP) and Independent Electoral Commission (IEC) attorneys have this week moved swiftly to denounce the opposition Umbrella for Democratic Change (UDC) petition appeals citing no jurisdiction by Court of Appeal to entertain such.


The BDP attorney Busang Manewe of Bogopa, Manewe, Tobedza & company had therefore sought relief for the highest court to dismiss the appeals. “The BDP (excluding the IEC) shall pray for the dismissal of these appeals with costs of two counsel,” the lawyer pointed out in preliminary points filed with court, a copy of which has been passed to Weekend Post. Manewe asserted that “there is no statute that confers the Court of Appeal with jurisdiction to entertain these appeals and therefore the decisions of the High Court in these matters cannot be interfered with.”


No appellate court has an inherent jurisdiction to take appeals from judgements and orders of a lower court, he said in court papers adding that such jurisdiction can only be conferred by statute, but none has been conferred on the Court of Appeal with respect to these matters. “Consequently, the decisions of the High Court with respect to the petitions of the above appellants are final and cannot be appealed as the Court of Appeal has no jurisdiction to entertain the appeals arising therefrom,” the BDP attorney emphasised. 


He highlighted that the only appeal that the Court of Appeal can entertain is the matter of Aubrey Tumelo Ramatsebanyana, which appeal relates to a local government election to the extent that the jurisdiction to entertain an appeal for a council seat is not excluded by section 106 of the constitution.


Manewe said this in a matter in which 14 UDC Member of Parliament ex candidates in 2019 National Elections being: Duma Boko, Kenneth Segokgo, Victor Phologolo, Nelson Ramaotwana, Mpho Pheko, Ketlhalefile Motshegwa, Moagi Molebatsi, Olebogeng Watshipi, Mohammed Khan, Onthatlhile Selatlho, Patrick Mmulutsi, Marcus Chimbombi, Haskins Nkaigwa and Sam Digwa are appealing election petitions which were dismissed by the High Court recently.


The lot are appealing against the IEC and the dismissed petitions pertaining to the electoral victory of Annah Mokgethi, Thulaganyo Segokgo, Lemogang Kwape, Meshack Dumezweni Mthimkhulu, Tumisang Healy Mangwegape, Phuthego Modise, Christian Greef and Mabuse Mompati Pule. In another appeal Olebogeng Gilbert Watshipi, Mohammed Khan, Ontatlhile Justin Selatlho, Patrick Dibere Molutsi are also querying the win of Naniki Makwinja, Oabile Ragoeng, Liakat Kablay, and Eric Molale.


Haskins Nkaigwa, Micus Chimbombi, Sam Digwa are also appealing their petition against Mpho Balopi, Justice Brooks and Slumber Tsogwane. According to Manewe, the said UDC appellants were candidates for 2019 general election as members of the National Assembly and their petitions are those matters contemplated by section 69(1) of the constitution and instituted in terms of the Electoral Act CAP 02:09.


In these petitions, the lawyer explained that the UDC sought a determination by the High Court that the BDP (excluding IEC) were not validly elected to Parliament and consequently that their seats should be declared vacant. Aggrieved by the decisions of the High Court in dismissing their petitions, Manewe stressed that the UDC appellants have approached the Court of Appeal for orders setting aside the decisions of the High Court arising from the latter’s exercise of its powers under section 69(1) of the constitution.


Section 69(1)(a) of the constitution, BDP Counsel said it empowers the High Court with jurisdiction to hear and determine any question whether: any person has been validly elected as an elected member of the National Assembly; or the seat of any such member has become vacant. The said appellants, he said, “purport to approach the Court of Appeal as of right which in terms of section 106 of the constitution, section is expressly excluded. By virtue of section 106 of the constitution, section 10 of the Court of Appeal Act CAP 04:01 is also inapplicable.”


In terms of section 106 of the constitution of Botswana, Manewe explained that an appeal shall lie as of right to the Court of Appeal from any decision of the High Court which involves the interpretation of the constitution, other than a decision of the High Court under section 69(1) of the constitution. Additionally, “the UDC appellants cannot avail themselves of the provisions of section 11 (a) – (e) of the Court of Appeal Act which provisions confer the Court of Appeal with jurisdiction to entertain appeals,” the BDP attorney pointed out.

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