‘Botswana’s Courts Killing Democracy’

A new study by Baboloki Dambe and Olebile Daphney Muzila warns that Botswana’s courts are undermining electoral justice by dismissing petitions on technicalities, denying candidates a fair hearing on the merits Botswana’s courts have been accused of systematically undermining electoral justice by prioritising procedural technicalities over the substance of election disputes, a hard-hitting new legal study has revealed. The study, titled “The absence of judicial discretion to condone non-compliance in election petitions in Botswana: procedural formalism over substantive justice?”, by Baboloki Dambe and Olebile Daphney Muzila, paints a troubling picture of a system where election petitions rarely progress to full hearings. According to the researchers, Botswana’s strict insistence on procedural compliance has created what amounts to a legal “dead end” for aggrieved candidates and voters.

“The position becomes untenable when procedural compliance is elevated above all else, with the effect that all election petitions are dismissed on preliminary objections,” the study states. The authors argue that courts “invariably never get to deal with the merits of the petitions, irrespective of the gravity of the electoral irregularities complained of.” Dambe and Muzila further found that this approach undermines the very essence of electoral justice. “This undoubtedly undermines electoral justice… petitioners are deprived of the opportunity to have the merits of their complaints assessed by the courts,” they note.

The study cites the 2019 election petitions by the Umbrella for Democratic Change (UDC)—now the ruling party—as a clear example, where cases were reportedly dismissed on procedural grounds. At the heart of the problem, the researchers say, is the absence of judicial discretion—the ability of courts to overlook minor procedural errors in the interest of fairness. Without such discretion, even minor technical lapses such as formatting issues or filing irregularities can doom a petition before it is heard.