The absence of judicial discretion to condone non-compliance in election petitions in Botswana: procedural formalism over substantive justice?

Abstract Section 116 of Botswana’s Electoral Act grants any person aggrieved by the outcome of elections a democratic right to seek judicial redress. For this right to be meaningful, the procedural requirements for access to the courts must be clear and simple. This requires a conducive legislative and regulatory framework. Since the promulgation of the Electoral Act in 1968, Botswana has not had election regulations. The article poses the question whether election petitions can be fairly adjudicated in the absence of clear procedural regulations. Furthermore, it interrogates the position adopted by the courts in holding that they do not have discretion to condone non-compliance in election petitions and that any non-compliance, no matter how minor, renders the petition incurably flawed. The article examines the propriety of the courts’ insistence on strict procedural compliance and the dismissal of petitions on technical grounds, even where serious electoral irregularities are alleged. It argues that the approach of the courts in Botswana to election petitions, coupled with the absence of electoral regulations, undermines electoral justice. The article recommends reform of the legislative and regulatory framework with a view to enhancing the effectiveness of the exercise of the right to petition in respect of elections.