A new academic paper published in the Statute Law Review argues that Botswana’s courts have increasingly dismissed election petitions on procedural technicalities at the expense of substantive justice, undermining public confidence in the country’s electoral dispute system.
The paper, authored by University of Botswana law scholars Baboki Jonathan Dambe and Olebile Daphney Muzila, examines how Botswana’s courts have handled election petitions over the years. It concludes that strict procedural formalism has rendered the constitutional right to challenge election outcomes ‘largely ineffective.’
Titled ‘The absence of judicial discretion to condone non-compliance in election petitions in Botswana: procedural formalism over substantive justice?’, the paper was published this year by Oxford University Press.
The authors argue that although Section 116 of the Electoral Act grants aggrieved parties the right to challenge election outcomes in court. It says many petitions never reach a hearing on their merits because they are dismissed for procedural non-compliance, sometimes involving delays of only a single day or technical defects in filing documents.
The paper points to a series of election cases in which petitions were struck out despite allegations of serious electoral irregularities. Among the cases discussed is Rankgomo v Independent Electoral Commission, arising from the 2004 elections in Gabane North West ward, where 278 votes were reportedly unaccounted for. According to the paper, the petition was dismissed because an application to substitute a deceased petitioner was filed one day late.
The judges in that matter acknowledged the seriousness of the alleged irregularities, with the court noting that the disappearance of nearly one-third of ballots called into question ‘the credibility of the entire process.’ Nevertheless, the petition was dismissed because the court held it lacked the power to condone non-compliance with statutory deadlines.
The paper traces the origins of the strict compliance doctrine to the landmark Court of Appeal decision in Kono v Lekgari, where the court ruled that election petitions must comply meticulously with procedural requirements and that courts lacked discretion to excuse defects or delays. According to the authors, the Kono judgment has since shaped Botswana’s electoral jurisprudence, with subsequent courts repeatedly holding that even minor procedural defects render petitions ‘fatally defective and a nullity.’
The paper further argues that Botswana’s failure to enact dedicated election petition regulations since the Electoral Act was introduced in 1968 has worsened the situation. Without clear procedural rules, the authors contend, courts have relied inconsistently on portions of the Rules of the High Court while excluding others that would ordinarily allow judges to condone minor procedural irregularities.
The article devotes substantial attention to the wave of election petitions filed after the 2019 general elections, in which opposition parties alleged widespread electoral irregularities, including unlawful interference by state institutions and irregularities involving the voters’ roll. Many of those petitions were dismissed on preliminary objections, including failures to file what courts considered proper ‘notices of presentation’ or omissions relating to sureties for legal costs.
The paper acknowledges that some High Court judges have dissented from the majority approach.
Justice Michael Leburu, in one dissenting judgment cited extensively by the authors, warned that excessive procedural formalism risked turning electoral remedies into ‘a mirage and a denial of electoral justice.’ He argued that courts should prioritise substantive justice and avoid dismissing petitions on immaterial technicalities.
Another dissenting judge, Justice Godfrey Nthomiwa, argued that courts should not ignore ‘glaring electoral irregularities’ because of minor procedural defects, particularly in the absence of detailed election regulations.
The paper also criticises the current constitutional framework that bars appeals to the Court of Appeal in parliamentary election petitions. The authors argue that this leaves the High Court as both the court of first and final instance, creating the risk of conflicting decisions among different judges.
As part of its recommendations, the paper calls for urgent reform of Botswana’s electoral laws, including the enactment of comprehensive election petition regulations, the granting of judicial discretion to condone minor procedural lapses and constitutional amendments allowing appeals in election disputes.
The authors compare Botswana’s framework unfavourably with Kenya’s, where election petition rules expressly empower courts to overlook technical non-compliance where no prejudice arises and where appellate review is permitted. The paper concludes that Botswana’s current approach to election petitions elevates procedural compliance above substantive justice, limiting the courts’ ability to assess the merits of electoral disputes and weakening electoral accountability.