The role of the judiciary in the electoral process

Kgosietsile Ngakaagae | Friday September 21, 2018 15:09

We will introduce such, however, with two words that appear within Section 2 of the Electoral Act.

Under Section 2 of the Electoral Act, a constituency means a constituency that has been defined by the Delimitation Commission in terms of the Constitution.  A polling station, on the other hand means a polling station as defined by the Independent Electoral Commission (IEC). Only the IEC has the responsibility to set up or determine where a polling station will be.

You will notice from the above definitions, that key components of the electoral process are conducted by bodies that are presumably outside the Executive. The exact positioning of the IEC is debatable but the provision that it can only be headed by a person who has held High Judicial Office is clearly and effort to create a judicial buffer between it and the Executive. Constituencies are determined by a commission, while polling stations and the general supervision and administration of elections are determined by the Independent Electoral Commission. At the pinnacle of both entities are judicial personalities.

In terms of Section 64 of the constitution, the Delimitation Commission is set up by the Judicial Service Commission (JSC). The JSC is the same body constitutionally charged with the appointment of judicial officers including Judges of the High Court and the Court of Appeal.  Again, we witness a clear intention by parliament to keep these functions as far away from the predatory hands of politicians as possible.  As such when the Law Society of Botswana were feuding with the executive on the powers of the Judicial Service Commission, more was at stake than just the appointment of Judge Motumise to the bench. It was just as much a battle for the soul of the electoral process and, for democracy. When having been vanquished, the executive appointed the Permanent Secretary to the President to the Judicial Service Commission thereby flooding the Commission with its deployees, democracy was immediately put at peril.

The Executive was better suited to exert greater influence on the JSC and could determine the composition of both delimitation Commissions and Independent Electoral Commissions. An executive that controls these key institutions has the facility to determine the constituency landscape and therefore and to influence, even determine, electoral outcomes.

By rigging the composition of these bodies, the executive can rig elections before they even take place without the necessity of committing any fraud on poling day.  It is important therefore that the statutory and procedural framework of the electoral process must be audited as a whole. The enquiry cannot begin and end with what happened on election week. Often, observers do little in terms of auditing constitutive legal frameworks and focus narrowly on processes followed on the electoral week

In terms of Section 63 of the Constitution, Botswana shall be divided into as many constituencies as there are elected members of the National Assembly and each constituency shall be accordingly represented by one person in parliament. The work of the Delimitation Commission, is essentially geographical in nature.

A school of thought has emerged overtime for a more substantive notion sensitive to the interests of marginalised groups, minorities and other population demographics. Our democracy hasn’t as yet warmed up to these schools of thought but the logic thereof is quite compelling. It may be a question of time before such progressive thought is embraced by power brokers and we see change in the electoral landscape. At Section 65A of the Constitution provision is made for the appointment of the Chairperson of the Independent Electoral Commission.

The present Serving Chairperson is Judge A. Tafa of the High Court. By insisting on judicial officers who have held high Judicial Office with regards to both the Delimitation Commission and the Independent Electoral Commission, parliament sought to sustain the integrity of the democratic process which is the bedrock of political tranquility and economic prosperity.  It should be self-evident by now that judicial appointments are very crucial in our democracy. Judges are not about just solving cases. They are also about keeping our democracy together. The electoral process depends on them for the supply of integrity, an attribute with which it is hard for one to be a politician. 

Wherever, and whenever neutrality is required, especially with regards to matters in the national interest, and especially where accountability is required it is to Judges and former Judges that the country generally turns for neutrality and the semblance of fairness necessary to ensure that processes have the required integrity and their outcomes are acceptable to the general public. It would make sense for parliament to ensure that the position of the Secretary to the Independent Electoral Commission is likewise entrenched. The secretary must not be bullied by institutions with vested tender and election rigging interests in electoral reforms such as EVMs. 

Next week we will continue with discussing the role of the judiciary in the electoral process. We shall touch among others, on the magistracy and the resolution of electoral disputes.