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N$450 000 demand from IPC questioned

The Electoral Court ruling requiring the Independent Patriots for Change (IPC) to provide N$450 000 in security for costs in its election challenge has been criticised, with many arguing that the decision places an unfair financial burden on the party.

Lawyer Werner Boesak has called for a potential constitutional challenge to address the financial hurdles faced by applicants in election-related legal cases.

“That issue might have to be dealt with at some point in time [to determine] whether it is the correct approach for an applicant launching an election challenge to be put on cost security,” Boesak said.

He suggested that the current practice, which places a financial burden on those seeking to challenge election outcomes, may need to be scrutinised.

“Clearly there are other issues that may arise as well, but we are developing constitutional democracy and this is what happens in any constitutional democracy,” Boesak said.

Henk Mudge, the leader of the Republican Party (RP) of Namibia, argued that no party should bear the financial burden of questioning election procedures.

Werner Boesak

“There should be no cost when an election is questioned or the measures in the election, and in any case, it is not something that we started. It is something that the ECN failed in and, therefore, they should be the ones that supply security should [it] ever be needed, but it shouldn’t even be part of the process,” Mudge said.

Mudge also described the allocation of N$150 000 each to Swapo, the president and the ECN as unjust.

“Even if the IPC launches the case to protect their interests, they should not be required to pay securities.

This responsibility should not fall on the IPC or any other party involved,” he said.

Mudge said there is a need for a judiciary that prioritises fairness and impartiality.

“We hope to see what will come from this, but we need a neutral court … [and] the judiciary should show that they understand the plight of the people by not even giving a security amount that has to be paid,” Mudge said. The Electoral Court on Wednesday ruled that the IPC should pay security costs of N$150 000 to the Electoral Commission of Namibia (ECN), president Nangolo Mbumba and Swapo.

Lawyer Richard Metcalfe said it is fairly common to request security for costs when the opposing party is perceived to lack financial stability or is classified as a company, foreign entity, political organisation or association.

However, he said that this particular ruling reveals underlying concerns.

Richard Metcalfe

“It evokes mirth at the desperation to win time and postpone the present matters. Obviously there is an intention to postpone until after 21 March. It is just so hilariously predictable,” Metcalfe said.

He further speculated that any eventual judgement would likely confirm procedural missteps without overturning the election results.

“If there is ever a judgement, it will be that things were not properly done but the election results stand and correct procedure must be followed in the next election. Just another democracy in decline.

The precedent was set in the matter of the electronic voting machines in 2019 and 2020,” Metcalfe said.

National Unity Democratic Organisation (Nudo) secretary general Joseph Kauandenge also voiced his disapproval of the ruling.

“As a trained lawyer myself, it is disheartening to note that at this hour, we are still preoccupied with the issue of security costs versus access to justice.

While there might be legitimate concerns that a plaintiff might not have enough funds to pay the defendant should the defendant lose a case, the issue of security cost must be weighed against the right to access the courts by any Namibian in a democratic society,” Kauandenge said.

He said the deposit could be seen as a hindrance, and an in-built mechanism to prevent an aggrieved party from approaching the courts simply because they cannot afford to provide security.

Joseph Kauandenge

“Our democracy needs to be protected and there is no other state organ than the judiciary that must be at the forefront to do so. Therefore, any decision regarding security cost must be weighed carefully,” Kauandenge said.

Meanwhile, political analyst Johan Coetzee said the ruling decision is deeply flawed, especially given the IPC’s previously stable financial record.

“They didn’t have any financial issues or problems in the past, so I can’t see why they would not have been able to pay the N$450 000 anyway, from sponsors and from their own funds generated.

It doesn’t make sense to me and I think this is just an indication of how corrupt and skewed our judicial system has become,” Coetzee said.

Coetzee further questioned the prioritisation of financial requirements in cases of national interest, suggesting that such barriers distract from the public good.

“It doesn’t make sense at all and I don’t know [if] I trust it is not an indication of the biases of some of the judges. Because we have to remember that the judges are appointed and have been appointed by the president recently.

But nonetheless, I think justice has not been served. It is absolutely ridiculous,” Coetzee said.

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