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rymwoHLN| [LoOBatse] IN THE HIGH COURT OF BOTSWANA HELD AT Ree -O 003904 27 In the matter between: HASKINS NKAIGWA PETITIONER And INDEPENDENT ELECTORAL COMMISSION 45" RESPONDENT MPHO BALOPI 2*° RESPONDENT NOTICE OF PRESENTATION OF ELECTION PETITION (Section 118 Electoral Act) BE PLEASED TO TAKE NOTICE that the Petitioner in the above cited election petition hereby presents the following: _ [ HIGH 1. Power of Attorney 2 Petition 3. Verifying Affidavit- Haskins Nkaigwa - Moemedi Dennis Baikalafi - _Refiloe Aphiri 4. List of proposed sureties 5. Draft Recognizance (section 117(e) Electoral Act) 6. Draft Surety Bond (section 117(e) Electoral Act) DATED AT GABORONE THIS 22"° DAY OF NOVEMBER 2019 BAYFORD & ASSOCIATI (Petitioner's Attorneys) Broadhurst, Tshetha Crescent Plot 7104, Broadhurst P.O Box 202283 GABORONE To: THE REGISTRAR High Court Private Bag 00220 GABORONE ANDTO: — INDEPENDENT ELECTORAL COMMISSION (1% Respondent) GABORONE ANDTO: — MPHO BALOP! (2™ Respondent) GABORONE Recewed by B: Moe, wn a ‘SPECIAL POWER TO SUE AND DEFEND IN THE HIGH COURT OF BOTSWANA IN THE HIGH COURT OF BOTSWANA HELD AT GABORONE [Hic couRr OF BoToWANR | - vil : CASE NO. In the matter between: HASKINS NKAIGWA And INDEPENDENT ELECTORAL COMMISSION 48" RESPONDENT MPHO BALOPI 2" RESPONDENT |, the undersigned HASKINS NKAIGWA. do hereby nominate and appoint, Attorneys Dick Bayford and/or Karabo Masuku and/or ‘Sikhumbuzo Masuku and/or Dutch Leburu and/or Boingotlo Toteng and/or Kago Rapula Mokotedi and/or Onalethata Kambai and/or Unoda Mack or any attorney in the employ of Bayford & Associates or Monthe Marumo Attorneys or Toteng & Company or Otto Itumeleng Law Chambers or Kambai Attorneys or Bahuma Mack Attorneys, with power of substitution, to be my true and lawful Attorneys and Agents in my name, place and stead to appear before the above-named Honourable Court or wherever else may be necessary and then and there to:- 1. prosecute an election petition on my behalf and seek the following Orders: 1.4 directing that the second respondent was not duly elected in the 2019 Parliamentary elections for Gaborone North Constituency and that no other person was or Is entitled to be declared duly elected; 1.2. directing that the dectaration made by the Retuming Officer for the said elections to the effect that the second respondent was duly elected is null and void; 1.3 declaring that the Gaborone North parliamentary seat is vacant; 1.4 certifying to the President the vacancy of the Gaborone North parliamentary seat and the cause thereof, 1.5 directing that the first respondent pays the costs of this petition; 1.6 in the event the second respondent opposing this petition, directing that he bears the costs together with the first respondent jointly and severally, the one paying the other to be absolved; tA MT Hn to pay all fees of Counsel and Witnesses; to make all and any payment whatsoever, Which may be necessary and desirable for the proper conduct of the case; to proceed to the final end and determination thereof; and generally for effecting the purposes aforesaid, to do cause to be done, whatsoever shall be requisite as full and effectually, to all intents and purposes, as we might or could do if personally present and acting therein; hereby ratifying, allowing and confirming, and promising and agreeing to ratify, allow and confirm all and whatever our said Attorneys and Agents shall lawfully do or cause to be done in or doubt the premises by virtue of these presents. Given under my hand at Gaborone this 22° day of November, 2019 in the Presence of the undersigned witnesses. % \ WITNESSES: IN THE HIGH COURT OF BOTSWANA HELD AT GABORONE | CASE NO. In the matter between: | HASKINS NKAIGWA | ; 2 PETITIONER And Ls INDEPENDENT ELECTORAL COMMISSION 15" RESPONDENT MPHO BALOPI 2° RESPONDENT PETITION This petition humbly showeth that: 1. Your petitioner is HASKINS NKAIGWA, a Motswana adult self employed male of full legal capacity resident at Tawana in Gaborone, whose address for purposes of this petition is c/o Bayford & Associates, PO Box 202283; Plot 7104 Tshetlha Crescent, Broadhurst, Gaborone. 2. Your petitioner was a candidate in the 2019 Parliamentary elections for the Gaborone North Constituency (‘the constituency’) and he is eligible in terms of all relevant laws in Botswana to be elected as a Member of the National Assembly of Botswana. 3. Apart from your petitioner, the 2019 National Assembly elections for the constituency ("the elections") were contested by three (3) other candidates, to wit: 3.1 the second respondent, Mr. Mpho Balopi, who contested on behalf of Botswana Democratic Party (BDP). He is an adult male of full legal capacity resident in Gaborone, presently employed as a minister of State, whose further particulars are to your petitioner unknown. The second respondent was on 24” October, 2019 declared the winner of the elections; 3.2 Mr. Thatayaone Molefhe (Mr. Molefhe), a male adult of full legal capacity resident in Gaborone, whose further particulars are to me unknown. He contested the elections as a candidate for a party known as Alliance of Progressives (AP). 3.3. Dr. Sydney Pilane (Dr. Pilane), a male adult of full legal capacity resident in Gaborone, an Advocate of this Court resident in Gaborone, whose further particulars are to me unknown. He contested the elections on behalf of a party called Botswana Movement for Democracy (BMD); HW This is an election petition instituted in terms of section 116 of the Electoral Act (‘the Act’). Prior to institution of this petition and in conformity with the proviso to section 116 of the Act, your petitioner afforded, in writing, Mr. Molefhe and Dr. Pilane an opportunity of becoming parties to the petition as co - petitioners. Copies of the letters addressed to the two are hereto annexed and respectively marked “HN 1” and “HN 2”. 4.1 Both Mr. Molefhe and Dr. Pilane have not signified any desire to be joined in this petition as co - petitioners. The first respondent is the Independent Electoral Commission (IEC), a statutory body established in terms of Section 65 A of the Constitution of Botswana (as amended by the Constitution Amendment Act No. 18 of 1997). In terms of section 65 A (12), the first respondent is inter alia responsible for the conduct and supervision of elections of Elected Members of the National Assembly and members of local authorities and ensuring that elections in Botswana are conducted efficiently, properly, freely and fairly. The second respondent is Mpho Balopi whose particulars are as setout above and who was declared the winner of the said elections by the first respondent. In this petition, your petitioner complains of the undue election of the second respondent in the said elections and commission of corrupt and illegal practices by the BDP, Directorate of Intelligence and Security Services (DISS) with the connivance of certain employees of the first respondent as shall be fully particularised hereinunder and prays for the relief setout. BACKGROUND 8. On the 23° October 2019, Parliamentary elections were held in the Gaborone North Constituency amongst a total of fifty seven (57) constituencies spread across the length and breadth of the Republic of Botswana. This petition relates to this constituency. Your petitioner's polling agents, whose verifying affidavits are filed herewith, were present through out the voting process. The results of the elections as announced by the Returning Officer were as follows: 9.1 second respondent (BDP) 9566 9.2 Mr. Molefhe (AP) 1085 9.3 Dr. Pilane (BMD) 207 9.4 — Your petitioner (UDC) 5030 95 Spoitt 50 kn 10. Based on the results of the said count, on the 24" October, 2019, the first respondent, through the agency of the Returning Officer for the elections, declared the second respondent duly elected as Member of the National Assembly for the said constituency. The latter had edged over your petitioner with a margin of four thousand five hundred and thirty six (4536) votes. PARTICULARS OF THE IRREGULARITY COMPLAINED OF 11 12. Your petitioner complains that: 11.1 the second respondent has been unduly elected; 11.2. certain officials of the Botswana Democratic Party (BDP), whose full particulars appear hereinunder, engaged in corrupt or illegal practices to influence and distort the outcome of the election; 14.3 the Directorate of Intelligence and Security Services (DISS) unlawfully aided and abetted the BDP officials in executing the corrupt or illegal practices aforesaid; 11.4 certain officials of the Independent Electoral Commission (first respondent) unlawtully aided and abetted the BDP officials in executing the corrupt or illegal practices aforesaid; 11.5. the roll that was used on the polling day was not the same as the one certified by the Secretary of the first respondent; 11.6 the first respondent contravened or permitted the contravention of the provisions of section 28 of the Act. In proof of the complaints alleged to above, your petitioner shall at the hearing of this petition lead evidence from a whistleblower, Moemedi Dennis Baikalafi (Mr. Baikalafi), whose particulars are as follows: 12.1. an adult self employed man of full legal capacity resident in Gaborone; 12.2. the Managing Director of Even Life Holdings (Pty) Ltd; 12.3 member of the Botswana Democratic Party (‘BDP’) Communications Support Sub-Committee. Hw 13. 14. 15. 16. 47. 18. During the run-up to the 2019 elections Mr. Baikalafi was part of the national campaign team of the BDP. This team comprised amongst others the following office bearers of the BDP, to wit; Secretary General, Mr. Mpho Balopi (Mr. Balopi), Head of Strategy, Dr. Comma Serema (Dr. Serema), and Head of Communications and International Relations Mr. Kagelelo Banks Kentse (Mr. Kentse). In or about June 2018, a meeting attended by the BDP President Dr. Mokgweetsi Eric Keabetswe Masisi (Dr. Masisi), Mr. Balopi, Dr. Serema, the Treasurer of the BDP Mr. Satar Dada (Mr. Dada) and Mr. Baikalafi was convened at Tsholetsa House. Also present at the meeting was the Director General of Intelligence and Security Services, Brigadier Peter Fana Magosi (Rt.) (Brigadier Magosi). In this meeting, Dr. Masisi expressed his concern of losing the forthcoming elections and those present were called upon to suggest strategies of ensuring that the President wins the elections. It was clear to all present that the message conveyed by Dr. Masisi was ‘win by any means’. It was agreed at the said meeting that the date of the elections be set for 23° October 2019. Brigadier Magosi was to cause registration of ‘front companies’ to be used for money laundering purposes. An unspecified amount of money was to be transferred from a DISS ‘slush fund’ to the front companies. The front or dummy companies were to pay a company referred to as Native Groups (or a company of a name closely related) under the guise of advertising for the presidency. Native Groups is owned by Mr. Balopi, the Secretary General of the BDP. Dr. Masisi, Mr. Balopi, Brigadier Magosi and Mr. Dada devised a plan to pay Independent Electoral Commission (IEC) voters’ registration officials, to issue more than one voter's registration card per individual to be selected, who would subsequently cast votes for the BDP. The meeting resolved that Mr. Balopi in his capacity as the Secretary General would be the over-arching coordinator of implementation of the plan that had been hatched. The general voters’ registration took place during the period of 3” September 2018 to 11" November 2018 and it was during this period that implementation of the plan of issuance of double voters’ registration cards was to be implemented. Mr. Balopi issued instructions to various coordinators spread over the length and breadth of the country to approach voter registration officers of the IEC and to bribe them so that they could effect the duplicated registration. Mr. Baikalafi was one of the coordinators given this task. Hy 19. 20. 21 22. Mr. Balopi gave Mr. Baikalafi an amount of P 16 500.00 (Sixteen Thousand Five Hundred Pula); P 15 000.00 in cash and P 1 500.00 through Stanbic Mobile money transaction. In addition, he gave him a list of coordinators the latter was to manage. In particular, these were coordinators based in the Central Kalahari Game Reserve (‘CKGR’) being a certain Onkgolotse (mobile phone number 73925305 / 74480227). The latter was designated the team leader for the said area and he was to arrange double registration of potential voters in Phakalane, Gaborone including Gaborone North. The other coordinator (or team leader) was one Mmaagwe Dan (mobile phone 71615580), who was assigned the Maun area. She was assisted by her son Dan (mobile phone 74128830) and Kefilwe Makata (mobile phone 73735524 / 72369336). Mr. Baikalafi distributed the funds given to him by Mr. Balopi between the two teams aforesaid The coordinators (or team leaders) assigned to different areas were required to compile a list of potential voters who were to be used in the double registration exercise referred to above. Mr. Baikalafi was charged with coordination of the CKGR and Maun, inclusive of greater Maun. With the assistance of one Fish, Tiro Mekgwe, Thato Osupile, Selwana Kesebonye, Lotty Manyapedza, Kabo Masoba and Mbakiso Tjyiyapo, all BDP activists, a list of the potential double voters was compiled. This list was very copious, running into approximately 16 000 (sixteen thousand) names. Mr. Baikalafi is aware that other teams which were part of the exercise of coordinating duplication of voters’ registration and trafficking also compiled similar lists. Mr. Baikalafi states and has verily informed your petitioner, and the latter believe same to be true for reasons of his stated personal involvement both in the planning and execution of this vote fraud, that the potential voters mobilised for this fraud did not even turn up personally, or attend in person, at the various voter registration points. What was done by Mr. Baikalafi and others in his team was to: 22.1 obtain the names and National Identity numbers of said potential voters and then submit them to certain identified IEC Voter Registration Officers; 22.2 have the IEC Voter Registration Officers capture the names and identity numbers of said potential voters into their voter registration booklets, after hours and at their residences; 22.3 have the said IEC Voter Registration Officers issue at least two voter registration cards per such voter; 22.4 collect the issued voter registration cards for safe keeping, awaiting their handing over to the voters on election day to facilitate their voting; HN 23. 24. 25. 26. 27. It was agreed that the. pool for sourcing potential voters to be used in carrying out the electoral fraud was to include institutions such as military garrisons, tertiary institutions, organised community based organisations like soccer teams and cultural groups, as well as churches from which names and details of members could be easy to obtain. Such names were to be, and indeed were, submitted to the identified IEC voter registration officers and duly registered as having attended personally to register when in truth they had not, Many of the names were so registered without the consent and involvement of the individuals whose names and particulars were used, the idea being to then, consequent upon their successful registration as stated, then have the National Identity Office issue National Identity cards in respect of such individuals and have the DISS collect these and hand them to identified and trusted individuals who would then Present themselves at the various polling stations and impersonate the real persons of such names and particulars and accordingly vote. Most if not all such “voters” were deployed in Gaborone North and the rest of the Gaborone and surrounding constituencies. | have myself come across a number of individuals who state that they never attended at any polling station to register for the 2019 elections and did not expect their names to be in the voters roll for these elections. They were shocked to discover after the elections that their names do actually appear in the voters roll and fear that someone else may have impersonated them and voted purporting to be them. These individuals will be called to testify at the hearing of this matter. Other such “mobilised” voters were registered in the same way in the other Constituencies in Gaborone and the surrounding constituencies of Tlokweng and Mogoditshane, including Lentsweletau-Mmopane and were facilitated to vote in said constituencies and then cast a second vote in other constituencies, including Gaborone North. To Mr. Baikalafi's knowiedge the bulk of all documentation used to Prosecute the said fraud was kept in the custody of Mr. Balopi, who stored same at plot No. 55741, Tsaru Tsaru Close, Phakalane, his residence and Plot 208 Mogoditshane, being one of his properties. Mr. Baikalafi estimates that the total number of people who were used to perpetrate the double registration fraud could well run into tens of thousands. According to the scheme of double registration, Mr. Balopi paid or facilitated the payment of willing IEC voter registration officers in the amounts between P2 000.00 and P5 000.00. The actual amount paid depended on how well the registration official negotiated. Every registration official had their own voter registration books and were allowed to take the books to their respective homes, so that they could ‘work from home’. 28. 29. 30. 31. 32. 33, 34, Team leaders in various constituencies were appointed to ensure individuals were registered to vote in two or more different constituencies and to be moved to another constituency that needed more votes so that the BDP could win. This became what was called ‘the mobilisation’. When the registration officials managing voter registration filled in Form A correctly he/she would intentionally fill in a second form using the same information as the first but omit either a letter in the same name or a number in the identity number. This caused a second ‘individual’ to be registered on the voters roll and two pink voter registration cards were issued to the same individual but on the system it was recorded as two separate individuals. From my own understanding of electronic data maintenance, storage and retrieval systems, any activity undertaken on the system, such as the one kept and maintained by the first respondent, would leave an inerasable trace which would show: 32.1 who accessed the system?, especially where access is by password or some such form of personal identification; 32.2 what information was uploaded, deleted or altered during such access; 32.3 and exactly when such access was gained. Thus it would be easy and expedient for a proper disposal of this matter to have an audit of the data base or electronic system of the first respondent to settle this aspect. Transport, food, accommodation and incentives were then arranged by Mr. Balopi for voting day for the mobilized? trafficked individuals. Registration process commenced on or about September 2018 and continued for three months. There were three registration phases; general registration which took place at the registration polling stations, continuous registration which took place at the registration polling station and supplementary registration which took place at the registration polling stations. As averted above, team leaders in various constituencies, specifically recruited to defraud the electoral process were appointed to ensure that individuals were registered to vote in two or more different constituencies in an urban area or to be moved to another constituency that needed more votes in a rural area. HN 35. 36. 37. 38. 39. 40. 41. 42. In order to facilitate the said process the election day was set for Wednesday, with the Tuesday afternoon and Thursday being declared public holidays. This was the first time in Botswana's electoral history that three public holidays were declared for a general election. This was done so that buses normally used on working days could be used for ‘voter trafficking’ on the days before and after the elections. Sometime in October 2019, but before the election day, Dr. Masisi, Mr. Balopi, Brigadier Magosi and others went on a ‘tour’ around the country and informed the team leaders as to how to mobilise their ‘voters’. The buses arrived shortly after the team leaders were informed as they traveled to each area. The team leaders were paid a P 2 000.00 (Two Thousand Pula) stipend for September 2019 and October 2019 by Mr. Balopi and given airtime scratch cards to keep in contact. Some of the national coordinators were given cell phones. This stipend was provided for two months. The team leaders held all the duplicate voters’ cards in their possession as well as their legitimately issued voters’ registration cards. They would then get the voters on the buses and travel with them to the relevant constituencies to vote. On the 22” October 2019 the voters were transported and accommodated at facilities close to the voting stations they were to cast their votes at. At the voting stations there were line marshals who were holding the queue stating that they were awaiting 50 or more individuals in front of them so that when the voters arrived they could get off the bus, vote quickly and leave again. Voting began at 0630 hours, but the queue ‘started forming much earlier, so that the ‘line marshals’ would be in place from 0300 to ensure the trafficked voters would vote and go. Houses were ‘donated’ for accommodation and tents and mattresses were purchased and set up. About 70 tents were set up in Mogoditshane and tents were also set up in Gaborone, Phakalane and Block 6. Food was purchased from ‘Choppies’, a local chain store and alcohol was given to the mobilised voters. Mr. Balopi had issued an instruction that no teceipt was to be kept for the alcohol purchases and that payment was to be strictly by way of cash. Once the voters were done at the voting stations, they were transported to locations where lunch had been prepared for them by caterers. Both Voters’ registration cards were then taken from them and their names were ticked off the list, so that a record was kept of who voted. hn 45. 46. 47. 48. 49 50. 51 The mobilised voters were only paid their ‘incentives" after they voted and had handed in their duplicate voter's registration card. Mr. Baikalafi was directly and personally involved in the implementation of the said fraudulent scheme in respect of all Gaborone Constituencies which include Gaborone North, and Kanye South, Mogoditshane and Tlokweng constituencies. In all these constituencies, the mode of election cheating was as tabulated above. According to Mr. Baikalafi, he was in regular communication with other coordinators involved in the said operation and that they individually told him that they successfully implemented the plan as agreed. Save where the context otherwise reflects, all the averments made at paragraphs to 13 to 46 above, inclusively stem from what Mr. Baikalafi has verily informed your petitioner, and the latter believes same to be true for reasons of his stated personal involvement both in the planning and execution of this vote fraud. Your petitioner had assigned two (2) polling agents at each of the polling stations in the constituency. In addition, your petitioner was on the ground on the day of the elections and frequently visited, to assess the situation, each of the polling stations in the constituency. The averments that follow herein, of what transpired at the said polling stations derives from his observations and what the polling agents verily informed your petitioner, and the latter believe same to be true for reasons of their and his personal involvement thereat. At the polling stations and in order to facilitate the fraudulent scheme aforesaid, the presiding officers took copies of the elections rolls which the polling agents had brought with them and gave them substitute rolls, which had been manipulated to enable the fraud Several names of potential voters who were included in the elections voters’ roll certified by the first respondent were not in the substitute roll availed at the polling stations. In the event a voter's name was excluded from the substitute roll, the presiding officers would ask him/her to leave his/her telephone number under the pretext that they would call them later. The polling officers would later call the affected voters, some would come and they were allowed to vote despite the fact that their names were not in the roll hw 10 52. The forcible insistence by the Presiding Officer that your petitioner's polling agent should not cross out voters who had voted made cross checking and detection of double voting difficult, if not impossible. 53. Sometime in May - June 2019, your petitioner received a tip-off from one Vuyo Yane, a former BDP activist, who told your petitioner that some 426 students from Botho University in Gaborone had been registered to vote at Glen Valley and Phakalane respectively without having presented themselves physically before IEC voter registration officers. The said Yane gave your petitioner the list. It comprised three A4 pages, two of which were printed back to back. Each page had seven (7) columns titled as illustrated and each column had particulars and information corresponding with the column headings. The document is formatted thus: ‘Sumame | Other Date] National | Postal | Constituency | Mobile| Date of | Occupation names |of | 1D Address No. | Registration Bin 54. A copy of the said document is hereto annexed and marked “HN 3”. Your petitioner inspected the general roll and on 16" May 2019, he lodged a case of electoral fraud against the second respondent (Mr. Balopi) at Broadhurst Police Station, Gaborone. The police officer who received the report at the said police station is one Sub Inspector LetIhogela Molefhe (Sub Inspector Molefhe) 55. When your petitioner realised that there was no progress in the criminal complaint he made, in September 2019, he escalated the issue to the Station Commander of the said police station, Superintendent Lokae. He promised to prevail on Sub Inspector Molefhe to expedite the investigations. The case is stil pending with the police. 56. In order to check the credence of Yane’s assertions, your petitioner conducted his own investigations. One of the members of his campaign team, One Ms. Refiloe Aphiri, who was then a council candidate, spoke to an individual whose name she had randomly picked from the list. On the list, her particulars are reflected thus; ‘Katlego Botho Frank, Box 3049 Molepolole, Voter registration card number 00945498, Omang 121027715, cell number 75967818". She asked the latter is she was aware that her name appeared on the ‘Glen Valley Tent’ voters’ roll. Katlego Botho Frank told Refiloe Aphiri that she did not register at the said registration station, but that she had registered at Modibedi Kgotla in Molepolole. 57. At the time of launching of this petition, your petitioner has not been able to locate the said Vuyo Yane and Katlego Botho Frank in order to obtain from them verifying affidavits. For purposes of trial of this petition however, no effort shall be sparred to ensure that the two attend before the Court as witnesses. hy 58. 59. 60. u Your petitioner and members of his campaign team complained to IEC head office about the electoral fraud aforesaid. He was attended to by one Mrs. Raleru. She advised that your petitioner address a letter to the IEC Secretary encapsulating details of the complaint. This, your petitioner did However, the letter was never responded to. Your petitioner has prior to the elections lodged several objections with the Magistrate Court at Gaborone complaining of incidents of election fraud executed in exactly the same manner as the ones to which his attention was drawn to by Vuyo Yane, These objections totaled 14 in number. All the objections, with the exception of two, were successful and the names of the said fraudulent voters were struck off the roll by the Magistrate. Incidentally, none of the people objected against attended court. The two objections that were not successful were dismissed on account of your petitioner's failure to attend the court hearing. On polling day, your petitioner noted a litany of anomalies at the polling stations. The anomalies are catalogued herein. However, by no means is the list exhaustive: 60.1. polling agents were not allowed inside tents or classrooms where polling took place during the verification process of the ballot papers. Agents and some voters where shown empty boxes outside the polling rooms. Once this was complete, the IEC officials closed themselves inside polling classrooms or tents (the polling rooms) claiming to be consolidating the ballot papers. All this happened in the absence of the polling agents and when they asked, your petitioner's agents were told by the Returning Officer or Presiding Officer that, that was the exclusive business of IEC officers on duty. This anomaly happened between 0700 and 07h30; 60.2 Ballot papers for advance voting (by civil servants) arrived in cello- taped sealed brown envelopes; 60.3 IEC officials did not seem bothered about people who came in to vote with identity cards that did not correspond with the voter's registration card they had, Returning and Presiding officers acquiesced to this anomaly and permitted it to happen; 60.4 IEC had voters’ rolls that were different from those issued to the public as certified election rolls. Many names that appeared on the IEC voters roll did not appear on the certified roll purchased by the public. 60.5 Botswana Democratic Party was the only party which seemed to have inside information about additional polling stations. At Phakalane Primary School, for instance, Mr. Mpho Balopi made an un 60.6 60.7 60.8 60.9 12 announcement on behalf of the IEC of existence of additional polling stations. These additional stations were put up on the morning of elections, forcing other parties to solicit more polling agents to deploy on very short notice. As a result, your petitioner was put at a disadvantage of monitoring these additional polling stations. Your petitioner's polling agents missed the verification of ballot papers and opening of ballot boxes as a result of this arrangement. IEC officials classified these polling rooms as ‘Streams A, B or C or 1, 2 and 3, respectively, dividing voters according to their surnames in alphabetical order. Voters were instructed to fold their ballot papers in a certain way (in half horizontally or in haf laterally). Certain individuals, claiming to be assisting the elderly where allowed inside the polling area. When polling agents raised their concems the IEC officers present would object. IEC officials consistently denied polling agents an opportunity of verifying information on the Omang (identity) card and voter's registration cards of voters presenting themselves at the polls. Trucks full of bottled water entered polling stations and distributed water to all voters. The driver of the one truck in Phakalane claimed the water was donated by Southern African Development Community (SADC) Elections’ Observer Mission. The Presiding agent knew nothing about this development and confiscated the water. Polling agents were given letters by a few voters claiming to be official IEC documents that allowed them to vote. Voters who arrived after 2000 hours were allowed to voter as police officers manning polling stations went against regulations and opened gates. IEC allowed people who are not IEC officials to assist them carried out their mandate. 60.10 Diaspora ballot counting started in the absence of counting agents. 60.11 Some ballot papers hard a faint ‘x’ mark instead of marker print. This was an anomaly as markers were availed at all polling booths. When agents queried this, IEC officers dismissed them. Some papers where considered valid and not spoilt with ‘x’ mark outside the box provided on ballot. 60.12 IEC officers did not communicate with political party agents when moving ballot boxes from one classroom another for counting. polling rooms) to hw 61. 62. 63. 1B 60.13 Some seals on ballot boxes were tempered with. When the ballot boxes were opened, ballot papers were stacked together and folded simultaneously as if they had been put in the boxes wholesale. During counting, officers would shake the ballot papers in order to un-stack them. 60.14 IEC Presiding Officers in all polling stations refused counting agents to ride in government vehicles that ferried the ballot boxes. Polling agents were told to use their own mode of transport. Routes to main counting centre for Parliamentary polls, previously agreed on by the IEC and the parties contesting, were altered, 60.15 Lighting was inadequate and no alternative forms of lighting were in place. IEC and agents had to use their mobile phones as a source of light. The above are just many of the anomalies that characterised the conduct of the poll in Gaborone North and further evidence on other anomalies will be led. In view of the fact that the only Voters Rolls used at the polling stations were those furnished to the polling agents at the polling station on election day, said voters rolls form a critical piece of evidence in this matter and should, therefore be availed to your petitioner. He has consequently requested said voters rolls from the first respondent by letter dated 6 November 2019 which was duly served on the first respondent. A copy of the letter is annexed hereto as “HN 4”. The first respondent undertook to revert to your petitioner's attorneys in respect of the said voters rolls per its letter of 7 November 2019 annexed hereto as “HN 5”, subsequent to which the first respondent sought an indulgence to 14 November 2019 per its email communication of 11 November 2019 annexed hereto as “HN 6”, The first respondent then finally gave a response by letter dated 13 November 2019 a copy of which is annexed hereto as “HN 7”. The voters’ rolls which were the subject of your petitioner's request communicated through his attorneys are of critical importance to this petition and he persists in his demand to be furnished therewith. | am left with no doubt in my mind that the BDP plotted and orchestrated an electoral fraud never witnessed in the history of Botswana. This fraud was done at a massive scale and was well coordinated. | annex hereto, as another illustration of the fraud, a copy of an affidavit deposed to. by one Thuto Mooketsane, an employee of the IEC. Upon noticing the IEC's double registration fraud, he drew his superiors’ attention to same, only to receive the latter's wrath and placed on a procedurally flawed suspension The affidavit, the contents of which are self explanatory, is marked “HN 8” and Thuto Mooketsane will be called as a witness at the trial of this petition. HN 65. Your petitioner contends that the first respondent has failed to deliver in the constituency he contested for, a poll that was efficient, proper, free and fair, thus abdicating its Constitutional mandate. 66. Owing to the nature and magnitude of the fraud perpetrated and imegularities committed as averred above, it would be difficult and even impossible for the Court to ascertain the rightful winner for the Gaborone North constituency, RELIEF SOUGHT 67. WHEREFORE your petitioner prays for an Order in the following terms: 65.1 directing that the second respondent was not duly elected and that no other person was or is entitled to be dectared duly elected; 65.2 directing that the declaration made by the Returning Officer for the said elections to the effect that the second respondent was duly elected is null and void. 65.3 declaring that the Gaborone North constituency seat is vacant; 65.4 certifying to the President the vacancy of the constituency seat and the cause thereof; 65.5 directing that the first respondent pays the costs of this petition; 65.6 _in the event the second respondent opposing this petition, directing that she bear the costs together with the first respondent jointly and severally, the one paying the other to be absolved. Your petitioner humbly prays as ever and anon he shall. DATED AT GABORONE THIS 22"° NOVEMBER, 2019 HASKINS NKAIGWA (PETITIONER) clo BAYFORD & ASSOCIATES Broadhurst, Tshetiha Crescent Plot 7104, P.O. Box 202283 Gaborone [DB/tmb/9442] TO: AND TO: AND TO: 15 THE REGISTRAR OF THE HIGH COURT Private Bag 1 GABORONE INDEPENDENT ELECTORAL COMMISSION (1* Respondent) GABORONE MPHO BALOPI (2"' Respondent) GABORONE HA "HN LL “ BAYFORD & ASSOCIATES Attorneys, Notaries & Conveyancers Lot 7104. Tsheting Crescent, Broadhurst, P O Box 202283 GABORONE Tei 3956877 Fax 3956366 VAT REG NO 103529701112 Email vayiora@gionat bw : OUR REF DB/tmb/9458 YOUR REF URGENT 11" November, 2019 Mr. Thatayaone Molefhe GABORONE BY HAND Dear Sir, RE: ELECTION PETITION, GABORONE NORTH CONSTITUENCY — HASKINS NKAIGWA vs. INDEPENDENT ELECTORAL COMMISION (IEC) AND MPHO BALOPI 1. We refer to the above matter and advise that we act on behalf of Mr. Nkaigwa aforesaid, whose instructions appear herein. 2. Our client has instructed us to institute an election petition on his behalf in the High Court of Botswana complaining about the undue election of one Mr. Mpho Balopi, who, on the 24" October 2019 was declared the victor in respect of the Gaborone North Constituency election in which you were also a candidate. 3. In the intended petition, our client would seek inter alia the setting aside of the results of the said election by reason of numerous irregularities to be fully traversed. 4. __ In terms of the proviso to section 116 of the Electoral Act, a petitioner is required, before lodging a petition with the High Court, to afford every person, other than the victor, who was a candidate at the election to which the petition relates an opportunity of becoming a party to the petition as a co - petitioner. 5. By this letter, you are accordingly afforded the said opportunity. Kindly indicate by return within two (2) days of receipt of this letter whether you want to avail yourself the opportunity of being joined as co - petitioner in the intended petition. If we do not hear from you then, we shall presume that you do not wish to be so joined and proceed with the petition without further reference to yourself. Yours faithiyly BAYFORD & ASSOCIATES Per: Dick Bayford cc. client bo OUR REF YOUR REF "BAYFORD & ASSOCIATES Attorneys, Notaries & Conveyancers 202287 GASORONE 388 Lot 7104 Tsnetina Crescent, Broadhurst, P.O Ba Tel 3956877 Fax 3 VAT REG NO 103529701112 Email vaytord@giobal bw DB/tmb/9458 URGENT 11" November, 2019 Dr. Sydney Pilane GABORONE BY HAND Dear Sir, RE: ELECTION PETITION, GABORONE NORTH CONSTITUENCY — HASKINS NKAIGWA vs. INDEPENDENT ELECTORAL COMMISION (IEC) AND MPHO BALOPI We refer to the above matter and advise that we act on behalf of Mr. Nkaigwa aforesaid, whose instructions appear herein. Our client has instructed us to institute an election petition on his behalf in the High Court of Botswana complaining about the undue election of one Mr. Mpho Balopi, who, on the 24" October 2019 was declared the victor in respect of the Gaborone North Constituency election in which you were also a candidate. In the intended petition, our client would seek inter alia the setting aside of the results of the said election by reason of numerous irregularities to be fully traversed. In terms of the proviso to section 116 of the Electoral Act, a petitioner is required, before lodging a petition with the High Court, to afford every person, other than the victor, who was a candidate at the election to which the petition relates an opportunity of becoming a party to the petition as a co - petitioner. "UN 2! 5. By this letter, you are accordingly afforded the said opportunity. 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