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Masimolole takes IEC to court

Masimolole petitions court to nullify Kgoroba’s win

High Court Judge Nthomiwa is expected to decide whether to proceed with a petition in which the former Botswana Democratic Party (BDP) and Mogoditshane Member of Parliament Patrick Masimolole is suing the Independent Electoral Commission (IEC) for losing the October 2014 General Elections.


In a closely contested election, Masimolole lost the constituency to Umbrella for Democratic Change (UDC)’s Sedirwa Kgoroba. Kgoroba garnered 4 180 while Macdonald Rakgare of the Botswana Congress Party came second with 3 846, and Masimolole was last with 3 787.


Ironically, it is Masimolole who is seeking the court to declare that the election process at the Mogoditshane constituency was unfair, improper, irregular and liable to be set aside as a nullity.


According to the court papers passed to this publication, the former legislator who is represented by Sadique Kebonang Attorneys, wants the court to declare that Kgoroba’s victory was due to lack of proper and due diligence on the part of the officials of IEC therefore making the elections unfair.


Masimolole also stated that should the court find the elections to have been marred with irregularities – in the affirmative – then it (court) should declare that Kgoroba was not duly elected. “The petition also seeks that the court certifies its determination to the Secretary of IEC Gabriel Seeletso who shall thereupon declare that Kgoroba was not duly elected.”


Meanwhile, the seconder to Kgoroba in the election, Rakgare, refused to be party to the petition. In fact the court papers reflect that he has refused to sign the letters or least meet with the petitioner.


Masimolole further states that, “alternatively, if the court determines that Kgoroba was not duly elected and that no other person was or is entitled to be declared duly elected, the court must declare the seat to be vacant and certify its determination to the President of the Republic of Botswana Lt. Gen. Ian Khama that a vacancy has occurred and the cause of such vacancy.”


According to Masimolole, alternatively, in the event it is determined that there was compliance with section 70 (1) of the Electoral Act, then he would ask for an order declaring that the counting process of the ballot papers at the Mogoditshane constituency was improper and irregular.


The order would direct and compel the IEC to count the election ballots of the constituency afresh within 30 days of issuance of such court order.


The former BDP legislator further complained in the court papers that, the first irregularity is in clear contravention of section 70 (1) of the Electoral Act Cap 02: 07. He asserted that after the ballot boxes arrived at Mogoditshane Senior Secondary School, which was the counting station, the returning officer, contrary to all expectations and due process did not verify ballot paper accounts of each polling station or any at all.


“This did not happen at Mogoditshane constituency elections. Upon arrival of the ballot boxes at the counting, agents were not allowed to verify the votes as required and mandated by section 70 (1) of the Electoral Act [ Cap 02: 09]. Accordingly there was non compliance with the mandatory requirements of the Act and the consequent results are a nullity,” he protested.


Another irregularity, he submitted, was that when the ballot boxes were emptied, the returning officer did not inform the counting agents and all other attendants at the polling station of each of the ballot boxes as they were being emptied as is the standard practice.


“The ballot boxes were just emptied haphazardly, some ballot boxes came to the counting station empty,” he asserted.


In addition and more critically, the former MP emphasised that, “the returning officer failed to verify and/or reconcile the results obtained from the charts by counting the actual ballot papers”.


Masimolole also maintained that the the failure to reconcile the results of the charts and the actual ballot papers was a grave irregularity that led to incorrect results in the constituency. He further averred that the practise being unfair led to unfair results.  


The matter is expected to be heared on 20 March.

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