As parties in the election challenge matter currently before the Supreme Court await judgement set for 28 February, New Era’s Roland Routh summarises the major occurrences during the proceedings.
Panduleni Itula, the president of the Independent Patriots for Change (IPC), brought a challenge to the presidential election held on 27 November last year, based on what he termed an unlawful proclamation issued by President Nangolo Mbumba.
The President extended the voting period in 36 constituencies for another three days to ostensibly allow voters the chance to express their democratic rights.
However, Itula is disputing the elections, saying the proclamation by the president is unlawful as he did not have the power to extend elections after it occurred. According to Itula, the circumstances giving rise to the proclamation concern voter irregularities on the election day – 27 November 2024.
In his submission to the court, Itula said a shortage of ballots across the country meant that an incalculable number of voters were deprived of their right to vote.
To make matters worse, the Electoral Commission of Namibia (ECN) did not follow the appropriate and lawful course of action to remedy the irregularities – which is – to apply to the courts for self-review of the validity of the election. Instead, he said, the ECN and the President embarked on an unlawful course of action.
“In the case of the commission, it abdicated its statutory obligation to act independently by seeking advice from, and consulting with, inter alia, the attorney general, Itula stressed. He further said the commission acted unlawfully by recommending to the President that he should extend polling after it had occurred, when it had no power to make this recommendation.
Mbumba’s role in the election
In the case of the President, Itula said, he acted unlawfully because he had – and has – no power to extend the period for polling under any law. According to Itula, President Mbumba’s proclamation is extraordinary because it reveals his ex-post facto and unlawful attempt to justify his conduct by relying on section 64(1)(b) of the Electoral Act to extend the election.
However, Itula stated this section does not give the President that power. Further, Itula argued, the President now attempts to distance himself from his proclamation by relying on three new sources of law for the power to extend the election. However, Itula contends there are three problems for the President in that the law prohibits him from relying on an ex-post facto rationalisation for his decision. He is bound by his original reasons; secondly, none of the new sources of law empower him to extend an election and thirdly, even if the three new sources of law establish a power to extend, the law precludes the president from relying on these sources.
Itula contends that the Supreme Court is called upon to adjudicate whether the proclamation is unlawful, and the appropriate remedy. to Itula said, there is no doubt that scores of voters were disenfranchised because of the way the ECN conducted the election, which is precisely the reason why the President unlawfully extended the election.
LPM’s case
Bernardus Swartbooi, the leader of the Landless People’s Movement, made common course with Itula. He, however asks for the entire election to be declared null and void. LPM wants the court to restore the dignity of the democratic process by declaring both the decision to extend the election and the election itself unlawful.
“If the votes from the unlawful extension cannot be separated from the lawful election, the entire election must be invalidated,” LPM stressed. They further said the claim by the president and ECN that the extension was necessary to ensure voting access cannot override the clear legal boundaries of their powers.
“Inventing powers, or purporting to exercise such powers, where none exists is unlawful, LPM stated. In fact, they said, neither the President nor the ECN, had the authority to re-open or extend the election once polling began or concluded.
“By the start of the election, the president and ECN were functus officio: their authority to alter election dates was exhausted, and no law permitted them to revisit their decisions,” LPM stated.
They went on to say that this means the proclamation not only purported to usurp powers vested in other public functionaries that neither the President nor ECN had, but also that they applied such powers incorrectly. Simply put, LPM argues that their actions were beyond their legal powers and are, therefore, ultra vires, unlawful and void.
Swapo responds
Swapo Party and President-elect Netumbo Nandi-Ndaitwah (NNN) argued that the application of Itula and LPM is without merit. According to them, Itula’s mistaken belief that the voting process of the just-ended presidential election was marred by widespread disenfranchisement of voters and various other irregularities, Itula sensationally claimed that people who were not on the voter’s role were permitted to vote.
This is utterly false, they claim. They further said his case is generally pleaded in a carefree manner, as seen for example in his statement that the verification tablets are instruments employed which were not authorised by law, and undermined Part 5 of the Act as to relevant questioning of voters. As a matter of fact, Swapo and NNN say the application of Itula is defective in all material aspects, as it does not clearly set out the grounds on which it disputes the election or the proclamation by President Mbumba.
They further argued that Itula’s arguments are mostly based on false claims by his national general secretary Christine !Auchamus, that she personally participated in the inspection of the election material at ECN’s offices, and she compiled the report submitted on the basis of her own observations. According to Swapo and NNN, Itula and LPM’s case falls on various principles, including the fact that their rather opaque and imprecise complaints are unfounded and unproven.
As a matter of fact, they say, the president acted under his powers when he extended the election as section 64(3)(b) prescribes that any day that the president may determine under section 64(1)(b) (poll day) must be a day not less than 40 days and not more than 45 days after the nomination day. Thus, they claim, the section regulates not when the president must determine the day on which the poll must take place, but rather the time period reckoned from the nomination date during which period a day or days for polling could be determined by the president. Accordingly, they stated there was no merit in Itula’s complaint that the extension was not compliant with the Act.
Mbumba’s version
President Mbumba argued that no law was breached during the elections. According to him, there is no logic in the averments of Itula and Swartbooi and the approach is frivolous, to say the least. He further said their lack of logic is also infused by a good size of stubbornness. “We have said – more than once – that the Interpretation Proclamation 1920 says that if a proclamation is published – like in this case – on 28 November 2024, then it is effective from immediately after 24h00 the previous night. So, there was no ex-post facto extension of anything,” the President maintained. He further stated that they have pointed out, more than once, that the president’s power is contained in section 64(1)(b) of the Act. Section 9 of the Interpretation Proclamation of 1920 merely assisted the President to re-exercise the power because the occasion required it, and because it was plainly necessary, he said.
Of course, the President continued, he could also take into consideration his constitutional responsibility and powers as envisaged in Article 64 of the Constitution; not as free-floating power as the applicants like to have, but read with the power in section 64(1)(b) of the Act. He further said Itula and Swartbooi seek to wring an interpretation out of the proclamation that simply is not there.
Obviously, he said, he only extended voting days at polling stations that were identified by ECN, and which was listed in the proclamation. The President stressed that the applicant’s lack of logic is finally highlighted by the policy of the law.
“Courts do not readily invalidate public elections, but often strive in the public interest to sustain it. It is not for a court to decide an election, it is for the people to do so, the president stated, and asked the court to dismiss the challenge with the disdain it deserves.
Itula was represented by Anton Katz SC, assisted by James Diedericks and Keesler Perulsamy, instructed by Dirk Conradie; LPM by Dr Weder, Kauta and Hoveka, instructed by Andreas Hamunyela; Swapo and NNN by Sisa Namandj, assisted by Tinashe Chibwana and Karel Gaeb; and the president by Raymond Heathcote, assisted by Sacky Akweenda.