Poll battle kicks off

A PACKED courtroom in the High Court in Windhoek yesterday witnessed the start of a hearing that will determine the immediate future of Namibia’s democracy and government.

The public gallery was filled to capacity and no fewer than 13 lawyers gathered at desks overflowing with files of court documents as the hearing of an application to set aside last year’s Presidential and National Assembly elections started before Judge President Petrus Damaseb and Judge Collins Parker.Nine political parties and their presidential candidates who emerged from the elections on the losing side are asking the court to set aside the polls – and in effect order a re-run of the voting that took place three months ago – or order a recount of votes cast in the elections.This is the third time since Independence that national elections have been challenged in the the High Court. The DTA unsuccessfully took an election application to court after the 1994 polls, while the Republican Party and Congress of Democrats won a recount of votes when they challenged the 2004 National Assembly election five years ago.The nine parties involved in the current election challenge – the Rally for Democracy and Progress (RDP), DTA, UDF, Nudo, Congress of Democrats, All People’s Party, Republican Party, Namibia Democratic Movement for Change, and Democratic Party of Namibia – on January 4 filed an election application in which they ask the High Court to either set aside the National Assembly election of November 27 and 28 2009 or order a recount of votes cast in that election. On January 14, the parties’ candidates in the presidential election on the same dates joined the election application and the case was widened to also ask the court to set aside the presidential election or order a vote recount in that election.The respondents in the application are the Electoral Commission of Namibia, Swapo, Monitor Action Group, Swanu, the Communist Party of Namibia, the National Democratic Party, and three candidates in the presidential election: President Hifikepunye Pohamba, Swanu leader Usutuaije Maamberua and Communist Party leader Attie Beukes. The ECN and Swapo are opposing the application.The applicants are claiming that the elections were marred by several irregularities and violations of the Electoral Act.These, they claim, include a failure to post election results outside numerous polling stations after votes at those points had been counted, the counting and verification of votes at verification centres, which they claim is not provided for in the Act, a failure to record voter registration numbers of the counterfoils of some 16 357 ballot papers, and discrepancies between the records of the number of ballot papers that were issued to and used at several polling stations.The ECN is acknowledging that there were some shortcomings and that ‘some immaterial administrative hiccups’ may have occurred, but is arguing that these did not result in rigging or ballot box stuffing and did not have a material effect on the outcome of the polls or the correctness and reliability of the election results.Senior Counsel Reinhard Tötemeyer, who is representing the applicants, spent the larger part of yesterday’s proceedings addressing the court on technical objections that the ECN has raised in response to the application. Early in his address to the court Tötemeyer said the extent of non-compliance with the Electoral Act was such that it cannot be cured by an order for a vote recount. The elections would have to be set aside, he argued.The ECN has attacked the application with claims that much of it is based on hearsay evidence, which should not be relied on by the court. Tötemeyer’s response to this was that an election application is a case of its own kind, and that in such a case, the court is entitled to accept hearsay evidence or decide whether it will regard such evidence as reliable as long as the source of such evidence is disclosed to the court.One of the other points raised by the ECN was that the January 4 application was filed late – at the office of the Registrar of the High Court at 16h30, whereas the court’s rules state that the office’s normal hours for the filing of applications are up to 15h00. Tötemeyer argued that the rules also leave the Registrar with a discretion to decide whether to accept the filing of a case outside these hours.The ECN is further arguing that the widening of the application to also challenge the presidential election is not allowed by the Electoral Act, which states that an election application has to be filed within 30 days after the announcement of the election result. That cut-off date was January 4.The Act however also gives an applicant in an election case a ten-day period after the case was filed to supplement the applicant’s case, Tötemeyer responded on this point. He said the nine parties already indicated in the court papers that they filed on January 4 that their inspection of election material was continuing and that they could ask the court to be allowed to supplement and amend their case.The nine parties based their challenge as it looked on January 4 on what was available to them at that stage. Information that became available after that date prompted them to expand the application to also challenge the presidential election, he said. On a question from Judge President Damaseb, Tötemeyer had to concede, though, that in the January 4 court papers the nine parties did not give any clear hint that they would also be challenging the presidential election at a later stage.The hearing is continuing today.Tötemeyer is appearing for the applicants with co-counsel Albert Strydom and Andries van Vuuren, on instructions from Tobie Louw.The ECN is being represented by South African senior counsel Vincent Maleka, together with Gerson Hinda, Gerson Narib and Sisa Namandje, on instructions from the Government Attorney. Swapo is being represented by another South African senior counsel, Ishmael Semenya, with Sackey Akweenda and Elia Shikongo.