Understanding 2019 Presidential Election Case: The Applicants’ Arguments

JOHN NAKUTAON FRIDAY 17 January 2020, the Supreme Court heard the first ever presidential election challenge in Namibia.

The case was instituted by Panduleni Mbango Itula and four other applicants. Chief justice Peter Shivute announced that the judgment will be delivered on or before 6 February 2020. This write-up attempts to unpack the legal issues of the case in simple language in a three-part series.

Under the Namibian electoral system, an election can be nullified on two grounds: Irregularities; and non-compliance with part five of the Electoral Act (No. 5 of 2014). The applicants attacked the elections on both grounds.

The key question to be determined by the Supreme Court is whether the holding of the 2019 presidential election without a verifiable paper trail was invalid. The applicants assert that it was.

The invalidity, so they argue, stems from a decision by the then minister of regional and local government, Charles Namoloh, to implement section 97 of the act in a piecemeal fashion. Sections 97 (1) and (2) of the act make allowance for the use of electronic voting machine (EVMs). Subsections 3 and 4 of section 97, however, make the use of EVMs conditional on the simultaneous use of a verifiable paper trail.

A verifiable paper trail is crucial for voter confidence and trust. Importantly, in the event of a discrepancy between the results of an EVM and that of the paper trail, section 97(4) dictates that the paper trail results serve as conclusive proof of the election outcome for the relevant polling station or voting thread. The 2014 Namoloh decision effectively removed these safeguards and conditions set by parliament.

The importance of paper trails and compliance with electoral principles have been confirmed in comparable jurisdictions such as India, Germany and Kenya.

For instance, in 2013 the Indian supreme court in the Subramanian Swamy case held that a paper trail is an indispensable requirement for free and fair elections and for voter confidence. The German constitutional court in 2009 similarly confirmed the need for the verification of votes where EVMs are used.

In the Raila Odinga case the supreme court of Kenya in 2017 annulled the presidential election for the same reasons. It found that the cross-verification of votes as prescribed by parliament did not occur. It accordingly ruled that the 2017 presidential election was not conducted in accordance with the principles laid down in the constitution and the enabling legislation.

The applicants in the Namibian case argue that the ECN’s failure to give effect to sections 97(3) and (4) of the Electoral Act, by the same token, impairs the 2019 presidential election.

The minister’s action also violates a host of other constitutional provisions. These include the rule of law, democracy, separation of powers, the right to vote, and usurping the legislative authority of parliament.

The applicants are only challenging the presidential election though. The act creates a dual system for challenging presidential and National Assembly elections’ results. Presidential electoral challenges are directly lodged with the Supreme Court, whereas those of the National Assembly must first be instituted with the Electoral Court.

In respect of irregularities, the applicants are of the view that the credibility of voting via EVMs was compromised by factors such as the following: the ECN’s failure to secure the safe custody of the EVMs, the EVMs which went missing after the 2017 Swapo Elders’ Council elections; and the malfunctioning of some EVMs during the actual elections.

These events and occurrences bring into question the independence of the ECN. The cumulative effect of all these contaminate an election which in many ways had already failed to comply with the statutory preconditions. For them, the most logical consequence of all these is clear: nullity.

The applicants accordingly request the court to: 1) declare the 2014 Namoloh decision unconstitutional and invalid, and subsequent to that 2) invalidate the 2019 presidential election, 3) order a rerun and 4) order the ECN and others opposing the challenge to pay their legal costs.

In respect of previous elections conducted via EVMs, they are requesting the court to order that the nullification, if granted, operate prospectively/forward-looking only.

As for the cost implications of a rerun, the applicants remind the court of the Rally of Democracy dictum in which it confirmed and reiterated that: “…when circumstances justify doing so, the court will set aside an election whatever the cost to the public finances in doing so, [since] that is what the Constitution demands where an election occurred in breach of the principles contained in Part V of the act.”

• John Nakuta lectures on administrative law and human rights law at the University of Namibia (Unam). He identifies as a social justice academic. This article is written in his personal capacity.

In an age of information overload, Sunrise is The Namibian’s morning briefing, delivered at 6h00 from Monday to Friday. It offers a curated rundown of the most important stories from the past 24 hours – occasionally with a light, witty touch. It’s an essential way to stay informed. Subscribe and join our newsletter community.