Three judges of the Electoral Court yesterday ordered that the challenge on the results of the National Assembly elections held last November be put on hold until the apex court decides on a similar matter.
The Independent Patriots for Change (IPC) brought the two applications – one against the outcome of the National Assembly elections in the Electoral Court (EC), and another against the results of the Presidential election in the Supreme Court (SC).
In both applications, the patriots are asking the courts to declare Proclamation 34 of 2024, which was used to extend the elections by three days, as unlawful and in contravention of the Namibian Constitution.
Judges Hannelie Prinsloo, Orben Sibeya and Esi Schimming-Chase, who were tasked with hearing the application last week, asked the legal representatives of the warring parties why the EC application should not be postponed pending the outcome of the Supreme Court application.
Anton Katz (SC) from Cape Town, assisted by James Diedericks and instructed by Dirk Conradie on behalf of the IPC, argued in favour of the stay [postponement] application, supported by Patrick Kauta, assisted by Ezekiel Shigwedha on behalf of the Landless People’s Movement (LPM), which is applying to join the IPC in the challenge.
Yesterday, Judge Prinsloo, who read out the unanimous verdict, said it would be just and equitable to place the proceedings in the Electoral Court on ice, pending the decision of the Supreme Court on the lawfulness or otherwise of Proclamation 34 of 2024.
“It requires no magnifying glass to come to the realisation that the primary challenge mounted by the IPC in these proceedings, and the challenge to the Presidential election pending before the SC, is the same,” Judge Prinsloo stated.
“This is borne out by the first and second prayers on both notices of motion, which attack the impugned proclamation on the exact same basis”, she added.
The judge, however, went on to say the remedy the Electoral Court might grant may differ from the remedy the Supreme Court may grant.
This is because the challenge in the Electoral Court is on the National Assembly elections, while in the Supreme Court, it is the Presidential elections whose credibility is being put to the test.
A determination on the legality of the proclamation would have the same effect on both elections, Judge Prinsloo stated.
She further said the Act makes the urgency in determining such matters abundantly clear, and it is thus undesirable for the Electoral Court to determine the lawfulness of the Proclamation in circumstances where the apex court is saddled with the same issue.
“It is not far-fetched to remark that the decision of the Supreme Court will render guidance to this court in the present application, as the said decision may result in the proceedings before this court being unnecessary, alternatively leaving narrow issues for consideration, and providing a more focused and expedient approach,” the judge continued.
She reasoned that should the Supreme Court uphold the legality of the Proclamation, the IPC challenge will fall away.
However, should the apex court find that the Proclamation is unlawful, then the Electoral Court will only be required to determine the consequential remedy.
This will undoubtedly save costs, time and judicial resources and avoid duplication of work. In the end, the judge said, the two challenges are inextricably linked to the extent that the finding of the Supreme Court will benefit the parties in the evaluation of their matter and the stance to be adopted. The said decision of the apex court will map the trajectory of this matter, albeit on a loomed path, as it would have decided the fate of the Proclamation. As such, the judge said, it would be convenient, expedient, appropriate, fair, cost-effective and provide certainty to await the determination on the proclamation by the highest court in the land.
The cost for the application was held over for determination at a later stage. The matter has been postponed to 20 February for a status hearing on the Supreme Court decision, and for the LPM to be joined as an applicant. The IPC was ordered to pay security of N$450 000 on or before 11 February.
Meanwhile, the United Front, which is a grouping of concerned parties and individuals, has written a letter to the Judicial Service Commission to immediately stop the “developing mockery of the Electoral Court by an illegal bench hearing the electoral dispute of the November 2024 national elections.” According to them, none of the persons presiding over the dispute is legally- competent to preside, in a contemptuous disregard of the rule of law.
-rrouth@nepc.com.na