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Electoral Court may postpone IPC’s National Assembly poll challenge pending Supreme Court ruling

The Electoral Court is considering putting the National Assembly poll challenge of the Independent Patriots for Change (IPC) on hold until the Supreme Court has decided a similar case about the 2024 presidential election.

The court is due to give a ruling on Monday next week on the further course the IPC’s legal challenge of the National Assembly election will take, after the party’s election application did not proceed as initially planned yesterday.

Judges Hannelie Prinsloo, Orben Sibeya and Esi Schimming-Chase did not hear oral arguments on the merits of the IPC’s National Assembly election challenge, after the judges requested lawyers involved in the matter to first address them on a question whether the party’s case in the Electoral Court should not be put on hold until the Supreme Court has decided the IPC’s legal challenge of the presidential election.

In both of its election challenges, the IPC is targeting the proclamation in which president Nangolo Mbumba extended voting in the National Assembly and presidential polls.

The elections were initially scheduled to take place only on 27 November, before Mbumba extended voting in the elections to 29 and 30 November as well.

The IPC is asking the Electoral Court to declare Mbumba’s proclamation as inconsistent with the Constitution and the Electoral Act, and as invalid.

The party is also asking the court to declare that votes cast in the National Assembly election on 29 and 30 November and the conduct of the election were inconsistent with the Constitution and the Electoral Act, and invalid.

The president did not have the power to extend the elections, the IPC is claiming in documents filed at the Electoral Court and the Supreme Court.

Cape Town-based senior counsel Anton Katz, who is leading the IPC’s team of lawyers, told the judges the party supports having its challenge of the National Assembly election put on hold until the Supreme Court has decided the legal challenge of the presidential election.

The same argument being made in the Electoral Court about Mbumba’s proclamation will be made in the Supreme Court when the IPC’s challenge of the presidential election is heard on 10 February, Katz said.

He said it would make logical sense and be just and equitable for the Electoral Court to stay the IPC’s application until the Supreme Court matter has been heard and decided.

In written arguments filed at the court, Katz states that the IPC’s challenge in the Electoral Court to the president’s proclamation would fall away if the Supreme Court finds that the proclamation was lawful.

If the Supreme Court concludes that the proclamation was unlawful, the Electoral Court will be bound by that decision and will then be required to decide how that finding will affect the National Assembly election, Katz also says in his written arguments.
Lawyer Patrick Kauta, representing the Landless People’s Movement (LPM), which is asking the court to allow it to join the case as a co-applicant with the IPC, agreed with Katz’s address to the court.

Kauta remarked that a decision by the Supreme Court would limit the issues the Electoral Court would have to decide.

He suggested that the matter should be postponed to 11 February and that the LPM’s application to join the case as a second applicant should be heard then.

Senior counsel Raymond Heathcote, representing the president, Gerson Narib, who is representing the Electoral Commission of Namibia and Sisa Namandje, on behalf of Swapo, were all opposed to having the IPC’s Electoral Court case placed on hold.

An election challenge should be decided without delay, Namandje argued.

Heathcote took a swipe at the IPC, commenting that the party is intent on continuing “with this losing battle come hell or high water”.

When the IPC fails in the Supreme Court, “they will continue to distort the truth on TikTok and Telegram”, Heathcote charged, adding: “They will continue to defame the courts and tarnish Namibia’s good name in the world on national and international airwaves.”

Acknowledging that he was inspired by the rhetoric of former British prime minister Winston Churchill during World War II, Heathcote said: “They shall continue to brutalise the truth on the beaches of Walvis Bay and Swakopmund. They shall continue with their false facts and fake news on Facebook. When the hour of reckoning comes in this court, they will opportunistically embrace a possible stay to avoid political starvation.”

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