Opportunity Lost
By: CHRIS SMITHTHE chucking out of the ECN election case was perfectly correct; an administrative error was quite correctly reversed by the Court. The case struck from the roll, fine. There seem no grounds to appeal.
But Judge President Damaseb was quite specific in his condemnation of the Assistant Registrar who erroneously accepted the application after the official closing time on January 4 2010. He said that the Assistant Registrar has no discretion in this matter (accepting applications after hours) and that the public must know why she acted as she did as it is an invitation to lawlessness. Strong words indeed.
As, if I recall accurately, this is an almost parallel case to the ‘legal aid’ case where the Deputy Director responsible for legal aid was required to give either a yes or no decision and had no recourse to do neither, either through staying silent or saying he was waiting for a decision from “above”. He was guilty of maladministration through inaction.
I suggest the Assistant Registrar could be deemed to have acted similarly and committed “administrative error”. She either had to accept or reject the application. She chose to accept it. (Maybe even gave a receipt?). Thus a case (the application) exists in that the actions of the Assistant Registrar, in accepting the application, indicated that the required due process had been fulfilled; a clear signal to the applicants to proceed with their legal preparation. The application had been legally accepted in good faith and the fact that the application was brought before the Court is proof of this. But she was then judged to be in error.
It is interesting to note that Judge Parker accepted that court rules did make provision for acceptance of applications at any time where there were “exceptional circumstances” or when directed by the Court or a Judge. As there was no directive from the Court or a Judge (apparently) it is reasonable to assume that the Assistant Registrar was convinced there were “exceptional circumstances” as she accepted the application.
However the contention that “I do not think the applicants are entitled to assume that just because the Registrar accepted the papers at that late hour she must have exercised her discretion properly” raises a fundamental question; why should the applicant have any doubt about the application’s acceptance, and; in the absence of a formal advice, how would they know this??
Therefore I suggest, the applicants, “not unreasonably” were entitled to accept that, as the Assistant Registrar did not reject the application, she had made a value judgement that indeed there was “special circumstances” and that the merits of the case would be placed before the Court. How would they know otherwise? Judge Parker’s indication that the applicants should prove that there were those “special circumstances” seems to place the onus upon the accused to prove their innocence when the decision was that of the Assistant Registrar as an appointed official of the Executive! It is up to her, surely, to justify her decision.
Indeed both Judges Parker and Damaseb seem to indicate that matters electoral could well represent such “exceptional circumstances” as “there is a clear public interest that election disputes are quickly resolved so that there is certainty”. Judge Damaseb also states that “rules exist to promote predictability and certainty. The public expect their enforcement and ‘justice’ demands that the law is complied with”. Quite rightly.
The Court thus decided that the Assistant Registrar had broken the rules and deemed that her actions were illegal; that she, under administrative law, was wrong to accept the application and the Court reversed her administrative decision and in doing so nullifying all the preparatory work that was done with the “reasonable” expectation that they would get their day in Court having not been advised otherwise, even when an additional application was submitted on January 14.
To be fair to the Assistant Registrar, it is necessary to establish that she was not either under instruction from her superiors or just carrying out what had become a de facto reality within the “system” such that applications could, upon her decision, be accepted later than 15h00. However, this is only about a determinant as who is to blame. The locus and focus of responsibility is clear, the institution that accepted the application was subsequently found to be acting wrongly. It was their decision reversed by the High Court.
The “reasonable man” assumption does raise the simple question. If the official who accepted the application did so in good faith, although now obviously in error after the fact, but who is administratively responsible, later finds out that the application is deemed “a nullity” and the case is thrown out, does the applicant have a liability claim against the official and her institution? They proceeded on the basis that they would get their day in Court only to find out that an “administrative failure” made their efforts and financial outlay wasted. I suggest a case of administrative failure or administrative irregularity needs to be answered.
This also raises another obvious question; how many other applications received late are now considered “a nullity”; could be interesting!
However the basic sadness is that Namibians will never have the benefit of our very independent Judiciary giving their views on the claimed electoral irregularities; thus a learning opportunity has been lost. Maybe it is wishful thinking, but I would like to think that Parliament, with its oversight duty for the Executive would examine matters openly and report to the Nation.
We must not sink to the electoral chaos evident in other countries; we need that “predictability and certainty”. Maybe the opportunity is not lost?