The Independent Patriots for Change’s Electoral Court challenge of Namibia’s 2024 National Assembly election will not proceed until the Supreme Court has decided a similar case about the 2024 presidential election.
This was ordered by Electoral Court judges Hannelie Prinsloo, Orben Sibeya and Esi Schimming-Chase at the end of a ruling delivered in the Windhoek High Court yesterday.
The judges noted in a joint ruling that the election challenges which the Independent Patriots for Change (IPC) filed in the Electoral Court and the Supreme Court are based on the same legal issue.
That issue is whether the proclamation in which president Nangolo Mbumba extended voting in the elections, which initially were set to take place on 27 November only, to 29 and 30 November in Windhoek and in some constituencies in the Kunene, Oshana and Oshikoto regions, was lawful.
It is undesirable for the Electoral Court to consider the legality of Mbumba’s proclamation when the Supreme Court will hear the IPC’s presidential election challenge on the same issue on 10 February, the court said in its ruling.
The judges added that a decision of the Supreme Court on the legality of the proclamation would have an effect on both the presidential and National Assembly elections.
A decision of the Supreme Court would provide guidance to the Electoral Court and limit issues that would need to be decided in the IPC’s National Assembly election challenge, the court stated as well.
“In the event that the Supreme Court upholds the lawfulness of the proclamation, this court will be bound by that decision and the IPC’s challenge to the proclamation would, as a matter of course, fall away,” the court said.
The judges continued: “In the same vein, if the Supreme Court finds that the proclamation is unlawful, this court will be bound by that decision and will only be required to determine the consequential remedy. This will undoubtedly save costs, time and judicial resources and avoid a duplication of work.”
The court postponed the IPC’s National Assembly poll challenge to 20 February for a status hearing and for the Landless People’s Movement’s application to join the case as a second applicant to be heard.
The court also ordered that the IPC should pay N$450 000 in security for the legal costs of the Electoral Commission of Namibia (ECN), the president and Swapo by 11 February.
The court decided the amount to be paid as security for costs on 15 January.
The IPC is claiming in documents filed at the Electoral Court and the Supreme Court that the president did not have the power to extend the elections.
The party 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 ECN, the president and Swapo are all arguing in documents filed at the court that the IPC’s poll challenge should be dismissed.
In their written arguments, the ECN’s lawyers also suggest that if the court finds that the IPC has made out a case for an order to be given as asked by the party, the court should not set aside the National Assembly election in its entirety.
If the court finds that the extension of the elections was unlawful, it should only set aside the returns and outcome of voting that took place on 29 and 30 November, the ECN’s lawyers argue.
That would result in only votes cast on 27 November being taken into account – and would leave the IPC with 19 seats in the National Assembly, instead of the 20 seats allocated to it based on the election results that included votes cast on 29 and 30 November.
Swapo won 51 of the 96 elected seats in the National Assembly in the election.
If votes cast on 29 and 30 November are excluded, Swapo would be allocated one more seat in the National Assembly, the ECN has informed the court.
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