13 Dec 2023

The Court of Appeal will deliver judgment of a case between the Independent Electoral Commission (IEC) and the Umbrella for Democratic Change (UDC) on December 19.

This follows the IEC’s decision to appeal Justice Gaolapelwe Ketlogetswe’s order rendered on November 10 at the Francistown High Court. The IEC feels that the UDC does not have the right to observe and monitor the election registration process.

The case is before Justices Tebogo Tau, Isaac Lesetedi, Singh Walia, Mercy Garekwe and Gotsilekgabo Tebogo-Maruping at the Court Of Appeal (CoA). In his decision, Justice Gaolapelwe Ketlogetlwe gave the UDC an interim order to monitor and observe the registration process and interdicted and prevented the IEC from preventing the UDC registration clerks.

Appearing for the IEC, Advocate Andrew Redding said the UDC does not have the right to observe and monitor the registration process. Adv. Redding said the judge of the High Court emphasised issues of fairness and transparency and overlooked the administration of the whole matter.

“When an administrative body denies you right, your redress is administrative review,” he said, adding that the UDC should have challenged the IEC or the Electoral Act. Adv. Redding stated that what the UDC was doing was seeking the court to create a right to observe elections, which was exclusive of other parties.

“There is no right and that is the end of it. If there has to be a challenge, it ought to be on the Electoral Act,” he said. He said the court should be interpreting legislations and not to identify gaps. Also, he said it puzzled that other interested parties such as the Attorney General were not cited in the matter. Furthermore, he said there were privacy concerns with regard to registration data shared with the UDC registration clerks, adding that voters would never want their information shared for advertising or political campaign.

Advocate Duma Boko for the UDC said the party had the right to observe registration and that derived from the Electoral Act, which he said was a mirror of the Constitution. He added that the party was courteous when writing to the IEC that it would be deploying registration clerks. Adv. Boko further said their application to the High Court was to avert chaos and ensure that the monitoring and observation was done in an orderly manner.

He said the UDC was desirous of not impeding the registration exercise hence it did not seek an order to stop the processes. He noted that the UDC would exploit the possibility of interdicting the registration if aggrieved by the court decision. “It will not inconvenience the IEC should the UDC have its election observers,” he said.

He said the personal data privacy that the Commission was complaining about was not an issue, as such information had been shared in public places such as shops and the voters roll, among others. “There is no law that prohibit us,” he said. “Where in the Electoral Act does it prohibit election observation?” He said added that the lawgiver in his or her wisdom never prohibited observing the registration process. ENDS.