A well-established private attorney who is also a senior partner at Bayford and Associates, Dick Bayford has sent a chilling alert to the High Court of Botswana cautioning them against making a judgement that may have the hallmarks of causing chaos in the impending 2019 General Elections.
Bayford said this when making presentations on the capacity as and from attorney perspective in a case in which they are representing the main opposition party in parliament – at court – Umbrella for Democratic Change (UDC). In the case the Botswana Movement for Democracy (BMD) are challenging their expulsion from the umbrella party which is now left with Botswana National Front (BNF), Botswana Peoples Party (BPP) and Botswana Congress Party (BCP) in their endeavour to unseat the ruling Botswana Democratic party (BDP).
Bayford set the context by stating that as a matter of fact currently the UDC remains the leading opposition party in the country as it comprises various political formations. “So, if by some stroke of luck, the BMD is able to go to court and later get an interdict that says UDC must not contest elections; effectively the courts would be saying that the ruling BDP must be retained to power unopposed,” the well regarded attorney told a pack of journalists in a press briefing this week in Gaborone.
He said the court must then consider this very closely if it will augur well with the constitutional democracy that reigns in this country. The courts, he added must think hard whether it is desirable effectively to have one party running and contesting elections. “Whether it will be healthy for a democracy, whether it will conduce to peace and tranquillity in the country. Those are the considerations that any court, properly advised, would have to deal with,” Bayford said.
He further pointed out that it is very easy for the court to say that they are going to stop the UDC from contesting an election but then if people were to reflect carefully and to look at whether in fact it is practically to do that I would say it is not. In his view, “that would plunge this country into a very chaotic situation.” I don’t know, he continued, if the BMD is committed to democracy in this country that would be reminded about this cost.
The law guru emphasised that what the BMD is asking for in court has nothing to do with the coming elections. “They have been saying that the UDC is not going to be permitted to campaign or run these coming elections on as UDC. I think that is totally false.” According to Bayford, they are only saying the court must nullify the suspension of the BMD from the UDC, which is basically academic because that suspension was also followed by expulsion and so it’s a non-issue.
He said the second issue that they are raising is that, as a relief, they say that the court must state that their expulsion from the UDC is null and void. “So as regards to processes in relation to elections and preparation they mention nothing. It is only now that they are bringing the argument hiding behind self-created urgency that UDC is not allowed to contest. It is an empty statement,” the UDC lawyer brushed the issue aside.
He continued to stress therefore that “there is no case before court intending to bar the UDC from contesting the election in its own right.” The anti-establishment attorney further took a chilling attack to the BMD leadership by stating that “I must say with due respect to the leadership at the BMD that there is a total figmentation of their minds.”
Is UDC dragging its feet in the matter to reach impending elections?
So this case, Bayford narrated that the UDC first became aware of the case on the 14th December 2018 while the decision to expel the BMD having been taken way back on the 25th October 2018. UDC was only permitted to respond to the complaint at the beginning of the legal year commencing 1st February.
“Once the decision to expel the BMD, the party was fully informed of its right to lodge an appeal to the supreme decision body of the UDC which is congress. But rather the BMD decided not to utilise the option that is to exhaust the domestic revenue before they took the decision to rush to court,” he explained.
As you know recently, Bayford reminisced: I was involved in a case brought by Pelonomi Venson Moitoi and some of the authorities that were cited by the High Court in the judgement was that matters relating to political parties are best left to the political parties to determine. “Now we expect that if the High Court is going to be consistent in its findings it should in all likelihood assume in its position that it’s important that members of a political party feeling aggrieved by an decision taken by their party should embark on the internal processes of their party before they opt for court,” he argued.
“When we were in court a statement was made by the BMD to the effect that UDC is delaying the case. We take issue with that statement because it is totally deficient of any truth. BMD decided to sit on their laurels from the 25th October to the 14 December and effectively to the 1st February 2019.”
Bayford also observed that when the BMD went to court they did not ask the court to determine on their case on grounds of urgency. “I keep referring to the Venson-Moitoi case; people keep saying that the case was ran through the day and decision taken at night. This was because of the manner in which Venson Motoi lodged the case as it was on urgency basis,” he justified.
The legal nature of the BMD/UDC court case
According to Bayford, the case takes the form of a review application which means it differs from the appeal in that when someone goes to court to seek a review of a decision it must be shown that the matter falls within the arena of public and not private law. He added “secondly a review will concern itself with legality either in substance or procedural and it does not deal with the rational or facts of the case. In an appeal when someone appeals because is aggrieved, they would be allowed to carry out a narration of the facts and ask court to make a determination or findings that were made by the lower court.”
If this case was to succeed, the renowned attorney said the court is not going to say that the facts were wrong but that the decision that was made by the UDC was wrong. What the court might say, he continued, is that the procedure that was adopted by the UDC in arriving at that decision was wrong, and that is the distinction.
“No way that the High Court is going to subpoena the powers of UDC it being a voluntary organisation governed by its rules and regulations to take a decision,” he concluded. Bayford sat with other UDC lawyers while making the presentations in the matter being Boingotlo Toteng, a senior Partner at Toteng attorneys and Dutch Leburu who is a partner at Monthe Marumo attorneys.
The P250 million National Petroleum Fund (NPF) saga that has been before court since 2017 seems to be losing its momentum with a high possibility of it being thrown out as defence lawyers unmask incompetency on the part of the Directorate of Public Prosecution (DPP).
The Gaborone High Court this week ruled that the decision by the State to prosecute Justice Zein Kebonang and his twin brother, Sadique Kebonang has been reviewed and set aside. The two brothers have now been cleared of the charges that where laid against them three years ago.
The United States (US) will on the 3rd of November 2020 chose between incumbent Donald Trump of the Republicans and former Vice President Joe Biden of the Democrats amid the coronavirus pandemics, which has affected how voting is conducted in the world’s biggest economy.
Trump (74) seeks re-election after trouncing Hillary Clinton in 2016, while Biden (77) is going for his first shot as Democratic nominee after previous unsuccessful spells.
US Presidents mostly succeed in their re-election bid, but there have been nine individuals who failed to garner a second term mandate, the latest being George W H. Bush, a Republican who served as the 41st US President between 1989 and 1993.
Dr Mark Rozell, a Dean of the School of Policy and Government at George Mason University in Arlington, Virginia describes the complex US electoral system that will deliver the winner at the 3rd November elections.
“The founders of our Republic de-centralised authority significantly in creating our constitutional system, which means that they gave an enormous amount of independent power and authority to State and local governments,” Dr Rozell told international media on Elections 2020 Virtual Reporting Tour.
Unlike parliamentary democracies, like Botswana the United States does not have all of the national government elected in one year. They do not have what is commonly called mandate elections where the entire federal government is elected all in one election cycle giving a “mandate” to a particular political party to lead, and instead US have what are called staggered elections, elections over time.
The two house Congress, members of the House of Representatives have two-year long terms of office. Every two years the entire House of Representatives is up for re-election, but senators serve for six years and one third of the Senate is elected every two years.
For this election cycle, US citizens will be electing the President and Vice
President, the entire House of Representatives and one third of the open or contested seats in the Senate, whereas two thirds are still fulfilling the remainder of their terms beyond this year.
An important facet of US electoral system to understand given the federalism nature of the republic, the US elect presidents State by State, therefore they do not have a national popular vote for the presidency.
“We have a national popular vote total that says that Hillary Clinton got three million more votes than Donald Trump or in Year 2000 that Al Gore got a half million more votes than George W. Bush, but we have what is called a State by State winner takes all system where each State is assigned a number of electors to our Electoral College and the candidate who wins the popular vote within each State takes 100 percent of the electors to the Electoral College,” explained Dr Rozell.
“And that is why mathematically, it is possible for someone to win the popular vote but lose the presidency.”
Dr Rozell indicated that in 2016, Hillary Clinton won very large popular majorities in some big population States like California, but the system allows a candidate to only have to win a State by one vote to win a 100 percent of its electors, the margin does not matter.
“Donald Trump won many more States by smaller margins, hence he got an Electoral College majority.”
Another interesting features by the way of US constitutional system, according to Dr Rozell, but extremely rare, is what is called the faithless elector.
“That’s the elector to the Electoral College who says, ‘I’m not going to vote the popular vote in my State, I think my State made a bad decision and I’m going to break with the popular vote,’’ Dr Rozell said.
“That’s constitutionally a very complicated matter in our federalism system because although the federal constitution says electors may exercise discretion, most States have passed State laws making it illegal for any elector to the Electoral College to break faith with the popular vote of that State, it is a criminal act that can be penalized if one is to do that. And we just had an important Supreme Court case that upheld the right of the states to impose and to enforce this restriction”
There are 538 electors at the Electoral College, 270 is the magic number, the candidate who gets 270 or more becomes President of the United States.
If however there are more candidates, and this happens extremely rarely, and a third candidate got some electors to the Electoral College denying the two major party candidates, either one getting a majority, nobody gets 270 or more, then the election goes to the House of Representatives and the House of Representatives votes among the top three vote getters as to who should be the next President.
“You’d have to go back to the early 19th century to have such a scenario, and that’s not going to happen this year unless there is a statistical oddity, which would be a perfect statistical tie of 269 to 269 which could happen but you can just imagine how incredibly unlikely that is,” stated Dr Rozell.
BLUE STATES vs RED STATES
Since the 2000 United States presidential election, red states and blue states have referred to states of the United States whose voters predominantly choose either the Republican Party (red) or Democratic Party (blue) presidential candidates.
Many states have populations that are so heavily concentrated in the Democratic party or the Republican party that there is really no competition in those states.
California is a heavily Democratic State, so is New York and Maryland. It is given that Joe Biden will win those states. Meanwhile Texas, Florida and Alabama are republicans. So, the candidates will spent no time campaigning in those states because it is already a given.
However there are swing states, where there is a competition between about five and 10 states total in each election cycle that make a difference, and that is where the candidates end up spending almost all of their time.
“So it ends up making a national contest for the presidency actually look like several state-wide contests with candidates spending a lot of time talking about State and local issues in those parts of the country,” said Dr Rozell.
High Commissioner of the Federal Government of Nigeria to Botswana, His Excellency Umar Zainab Salisu, has challenged President Dr Mokgweetsi Masisi to move swiftly and lobby Africa’s richest man, Nigerian Billionaire, Aliko Dangote to invest in Botswana.
Speaking during a meeting with President Masisi at Office of President on Thursday Zainab Salisu said Dangote has expressed massive interest in setting up billion dollar industries in Botswana. “We have a lot of investors who wish to come and invest in Botswana , when we look at Botswana we don’t see Botswana itself , but we are lured by its geographic location , being in the centre of Southern Africa presents a good opportunity for strategic penetration into other markets of the region,” said Salisu.