WINDHOEK – Judge Kobus Miller today at 10:00 dismissed the application to postpone the elections, as sought by four applicants who are led by lay litigant August Maletzky, who is also the first applicant in the matter.
Maletzky on behalf of the the Rally for Democracy and Progress (RDP), the African Labour and Human Rights Centre of which he is director, and the president of the Workers Revolutionary Party (WRP) Hewat Beukes, attacked the constitutional amendements that he said were passed without public consultations. Maletzky further attacked the credibility of the electronic voting machines (EVMs) without a paper trail to verify results in case of a dispute.
He said this could lead to vote rigging.
Counsel Sisa Namandje, representing the Electoral Commission of Namibia (ECN), the government, the Minister of Justice and the Minister of Regional, Local Government, Housing and Rural Development, would have none of it.
According to Namandje, the fact is that extensive consultations were held with the parties with representatives in parliament and even with those without representation.
According to Namandje, the assertion of Maletzky that the public have the right to be consulted on legislation holds no water.
“Article 17 clearly states that subject to such qualifications prescribed by law as are necessary in a democratic society to participate in the conduct of public affairs, whether directly or through freely chosen representatives,” Namandje said and emphasised the phrase “conduct of public affairs, whether directly or through freely chosen representatives”.
What it means, Namandje said, is that the legislature is not obliged to consult with ordinary citizens as their “freely chosen” representatives are already consulted.
Maletzky and the three parties have cited 18 respondents who are the ECN as the first respondent, along with the government, the ministry of local government and that of justice, and other 14 political parties all who have not joined the RDP and WRP in their application to have the elections postponed to next year February.
Maletzky and his cohorts want the High Court to declare the Namibia Constitution Third Amendment Act 8 of 2014 unconstitutional as it is allegedly contradictory to Article 5, Article 17 and Article 25 of the Namibian Constitution. Article 25 is about the enforcement of fundamental rights and freedoms.
He also asked the court to declare Section 209 (2) of the electoral law unconstitutional as it gives the Minister responsible for regional and local government the power to determine the different dates in terms of which different sections of the electoral act take effect.
Maletzky asked the court to declare Government Notice 208 of 2014 unconstitutional because it suspends Section 97 (3 and 4) of the Electoral Act that makes reference to a paper trail during the vote.
“On first sight it would appear that the reason to suspend Section 97 (3 and 4) is caused by the innocent error of the First Respondent to have acquired EVMs without the paper trail. However, upon closer inspection and in view of previous elections characterised by election fraud and rigging by the ruling party, Swapo, and the Election Commission of Namibia, the sinister and scandalous motives underwriting the deliberate purchase of these EVMs become clearer,” Maletzky charged.
Namandje argued that the court must not be waylaid by issues that has nothing to do with what is occurring, and questioned why the applicants decided on the eve of the elections to bring the application. Namandje argued that the applicants did not make out a prima facie case. He said that it seems that theirs is a constitutional battle.
Maletzky pounded on the usage of EVMs during the recently held by-elections, that without the paper trail it is not legal as they are not verifiable as will be the upcoming presidential and National Assembly elections.
“There is no doubt in my mind that the use of the EVMs without the paper trail will provide the ruling party, which already recorded victories in excess of 80 percent in some by-elections held, with the perfect opportunity to rig the elections at will and thereby disenfranchise me and fellow Namibians from influencing the composition of a democratically elected government,” said Maletzky.
Namandje however questioned why the applicants did not cite the presidential candidates in their personal capacities as they will be directly affected by the matter.
Namandje said that the matter is deem to fail because of this material failure as well as the failure to cite the President as the Head of State, Attorney General and the Speaker of the National Assembly.
The applicants are seeking orders which have far-reaching impact and consequences on the separation of powers by, inter alia, alleging that the legislature “abdicated” its functions by giving the power to the Minister of Regional and Local Government, Housing and Rural Development to determine on which dates which sections of the electoral act should come into operation, an affidavit by the Director of Elections of the ECN, Professor Paul Isaak reads.
For that reason they should have cited the Speaker as a respondent as they make serious accusations against the legislature. Namandje argued that the applicants’ failure to cite the aforementioned persons makes their case null and void and asked that it be outright dismissed with costs.
The respondents are the Electoral Commission of Namibia (ECN) as the first respondent, the Government of the Republic of Namibia, Nudo, the Christian Democratic Voice Party (CDVP), DTA, the Democratic Party of Namibia (DPN), MAG, the National Democratic Party of Namibia, RP, Swapo, UDF, UPM, APP, Minister of Justice, CoD, Minister of Regional and Local Government, Housing and Rural Development, Swanu and NEFF.
By Roland Routh