The sovereign and democratic state of Namibia is founded on supremacy of the constitution and rule of law, which prevails over the dictates of men. Notwithstanding the sovereign nature of the Namibian populace, the sovereign powers must be exercised within the ambit of the Constitution and applicable laws to enjoy legitimacy.
Therefore, the question whether a member of a public as a sovereign may contest in the local government authority election as mayoral candidate lies within the Constitution, the Electoral Act 5 of 2014, the Local Authority Act 23 of 1992 and the electoral system adopted for local government and not within the helm of men. The right to participate in political activities individually or as collective and to canvass for public office is constitutionally guaranteed save to modalities and limitations imposed by the constitution and relevant Acts of parliament.
The electoral system adopted for local government authorities (municipalities) is a closed party list system, which form part of the proportional representation electoral system. In terms of close party list system, the political party, organisation or association preserve the right as to who will serve as its representative at the local authority government level, while voters are limited to vote for the party or organisation and not for an individual.
These states of affairs are clear from the language of sections 85 and 86 (1) of the Electoral Act of 2014 that requires registered parties or organisation intending to participate in local authority elections to nominate and submit their preferred candidate list to the Electoral Commission. Furthermore, section 6 (2) of the Local Authority Act 1992 states unequivocally that the members of a local authority council shall be elected on a party list. The cumulative effect of these legal provisions reflects the features of closed party list system and subsequently exclude any possibility of independent candidacy nor the possibility to directly contest for the position mayor or any management positions as stipulated in the enabling act.
In terms of Article 111 (2) of the Constitution, the ultimate purpose of local authority council elections as envisaged by the Constitution and subsequent statutes is to elect councillors for the sole purpose to manage the affairs of the council. Thus, what is at stake during the local authority council election is the positions of councillor(s) to the exclusion of mayoral position or any position stipulated in the enabling act. Therefore, a person to avail him or herself and canvas for public votes for the position of mayor is a fallacy.
The remaining question as to who is vested with the authority to elect mayor of City of Windhoek or of any municipality, the answer is crystallised by section 11 (1) of the Local Authority Act 1992 that vest such authority in the capable hands of a duly elected councillor. Therefore, the logical conclusion on the strength of afore cited authorities dictates that the law does not permit at local government level independent candidacy, neither direct election of mayor of City of Windhoek, as such, mandate is entrusted to elected councillors.
Helmuth Naweseb
Admitted Attorney of the High Court of Namibia
LLB; LLM (Unisa); MSc. Int. Relations (UZ); MBA (IUM); PhD Candidate