The Perceived Legal Impossibility of Supplementary Registration of Voters is a Fallacy

The fundamental right of every citizen who has reached the age of 18 to vote is more than a symbol of our common citizenship. It is an instrument for determining who should exercise state power.

Voting invigorates our young democracy. Hence, it is a right that is preservative of all rights.

Because of the importance of the right to vote, the Constitution imposes a positive obligation on the state to not interfere with such a right.
At the same time, the state is enjoined to take positive steps to ensure that every eligible citizen can exercise the right to vote.

In fact, one of the objectives of the Electoral Commission of Namibia (ECN) is to strengthen democracy and promote democratic electoral processes.

With this, one must question that some appear to have accepted it is not legally possible to hold supplementary registration without postponing the 27 November elections. I disagree.

Supplementary registration can take place without postponing the election. This election date is fixed. and cannot be postponed.

The historical context is that our precious right to vote is loaded with bad memories – namely that in the past it has been denied to the majority, particularly blacks.

The Constitution repudiated this dark legacy by providing that every eligible citizen has a right to vote.

THE STATE AND THE PRESIDENT

The vote of every eligible voter in Namibia is a badge of dignity and an important element of the nature of our democracy.

Section 22 of the Electoral Act, 5 (2014) directs that every person who, by virtue of article 17(2) of the Constitution is eligible to vote, is entitled to be registered. This obligates the state to ensure everything is done so that every (of course, not necessarily all) eligible voter is registered.

The president determined 27 November as the date for the elections to take place. The ECN is undertaking the general registration of voters until 1 August.

However, there are hundreds who will turn 18 years only after 1 August.

There will also be hundreds who are eligible to register but may not have been able to do so by 1 August.

For that reason, the president has the power, under section 25(2) of the Electoral Act, to determine that supplementary registration of voters takes place.

This power is repeated under section 38(1), which says the president, on the ECN’s recommendation, may determine that supplementary registration must take place for “the inclusion in any voter register” of people who qualify to be registered and who have not or could not have registered in the last general elections “in respect of which that register was prepared”.

In terms of this section, if supplementary registration has been determined by the president, sections 25 to 34 (which include objections to the names of people on the voters’ register) apply with necessary changes.

This means these sections of the law will not be strictly applied in relation to supplementary registration.

There have been persistent calls that because of slow progress in the general registration, there is a need for supplementary registration.

TIME AND LEGALITIES

Lamentably, these calls have been met with suggestions that because of the short period before 27 November and the period of at least 90 days during which the chief electoral officer must prepare and publish the provisional national voters’ register, supplementary registration is not legally possible.

With respect, this view is wrong for many reasons, including:

• *The 90 days referred to in section 31(1)(b) relates to the preparation and publication of the “provisional” national voters’ register not the preparation, certification and publication of the final voters’ register under section 36.

• *Supplementary registration that the president could determine under section 38 is for inclusion of people who qualify to be registered as voters and who have not and could not register in the last general voters’ registration.

• *More importantly, the voters’ register prepared in terms of section 36 could be amended by the chief electoral officer in terms of section 43(1)(a)(i) of the Electoral Act to add names and voters’ registration numbers of anyone whose inclusion in the voters’ register is subsequently accepted “by virtue of any supplementary registration”.

PIVOTAL AND POSSIBLE

It must therefore follow from this that supplementary registration can lawfully be determined during any period after 1 August, for example during September, leaving sufficient time for the ECN to amend, in terms of the electoral act, the voters’ register prepared by then and certified under section 36.

It is therefore open to the ECN to recommend to the president to determine a short period for supplementary registration.

It is important that all those involved in facilitating the right of every eligible citizen to vote must enhance the right to vote rather than limiting it.

The right to vote is pivotal to our young democracy.

We will leave it to the ECN to consider the nation’s call for supplementary registration.

• *Sisa Namandje is a legal practitioner of both the High Court and Supreme Court of Namibia, and is the author of six law books