The Independent Patriots for Change v The Electoral Commission of Namibia (EC 1/2024) [2024] NAHCMD 391 (19 July 2024)

Facts 

At the stakeholders’ meetings, the applicant had expressed the view that the fact that a person is nominated for both Presidential as well as National Assembly was not in line with the Constitutional principle of separation of powers. As a result, the Electoral Commission of Namibia (ECN) requested the applicant to make written submissions, setting out its view regarding the applicant’s opinion on dual candidacy. The applicant furnished the ECN with its written submissions. After receipt of the applicant’s written submissions, the ECN advised the applicant, in writing, that owing to the complex nature of the issue, it had requested the attorney general for a legal opinion. Upon receipt of the opinion and on the applicant’s inquiry, the ECN informed the applicant that ‘upon reflection on the matte,r it is clear that the legal advice is a confidential communication between the attorney general and the ECN, and would not share the contents thereof with third parties.’

The applicant then addressed a letter to the ECN, requesting to be furnished with the minutes of the meeting as well as the resolution taken by ECN not to make the legal opinion available to the applicant. The request was not acceded to by the ECN. The applicant then instituted this application, in which it seeks an order reviewing and setting aside the decision by the ECN not to make available to the applicant the legal opinion on dual candidacy; an order declaring that the ECN’s said decision is contrary to the applicant’s rights guaranteed by Article 18 of the Constitution; and an order directing the ECN to make the opinion available to the applicant.

The ECN opposed the application, and raised four points of law in limine: first, that the Electoral Court lacks jurisdiction; second, that the deponent to the founding affidavit lacks authority to institute and prosecute the application; third, that the privileged communication between it and the attorney general, cannot be reviewed; and fourth, that there has been an inordinate delay by the applicant to bring the application.

When the matter was called on the day for hearing, the court informed the parties that it would first consider the point in limine of whether it lacked jurisdiction to adjudicate upon the matter.

Issues

Whether the ECN’s decision not to make the legal opinion available to the applicant constitutes an ‘electoral issue’ within the meaning of s 168(1)(e) of the Act. The phrase ‘election issue’ has not been defined in the Act.

Discussion

‘“election” means an election of the President, members of the National Assembly, any member of a regional council or a local authority council conducted under this Act, as the context may require; “election application” means either-

(a)in relation to a pre-election matter, a complaint regarding any conduct in contravention of this Act; or

(b) in relation to a post-election matter, a complaint regarding any conduct in contravention of this Act, and which is not construed as an application in terms of civil proceedings before a court; (underlining supplied for emphasis); “post-election” means the period during and after polling day; “pre-election” means the period prior to polling day;’

[29] The definition of what constitutes an ‘election’ is clear and self-explanatory. What constitutes an ‘election application’ in terms of the Act can either be an election application made before the polling day (pre-election), or an application made after the election (post-election). Such application must be a ‘complaint’ about the contravention of the provisions of the Act. The application must not be capable of being construed as an application in terms of civil proceedings.

[30] It is common knowledge, which this court is entitled to take judicial notice of, that the Presidential and National Assembly elections are scheduled to take place in November 2024, and that the polling date has not been announced yet. Mr Conradie is thus correct in his submission that we are dealing with a pre-election issue.

[31] Section 162(2) of the Act, however, provides that all matters arising before polling day in an election or referendum are adjudicated by an electoral tribunal, and all appeals against the decisions of the tribunal are heard by the Electoral Court. It follows, therefore, that on a proper interpretation of s 162(2), even if the applicant was correct in his assertion that the issue at hand was that of nomination of dual candidacy, this court would not have jurisdiction for the reason that it is a pre-election issue.

[32] In the event the interpretative conclusion reached above is incorrect, the court is bound to apply what has now become a well-settled approach in law, namely that the court’s jurisdiction is determined with reference to the pleadings, in particular the relief claimed by the applicant. In motion proceedings, the affidavits constitute both pleadings and the evidence.  

[33] The main relief sought in the notice of motion is to review and set aside the decision by the ECN not to avail to the applicant the legal opinion. The purpose of the application is described to be inter alia ordering the ECN to disclose the contents of the opinion sought from the office of the attorney general, which opinion deals with issues of the electoral process.

[34] The ECN denies that the issue for determination by the court is one of the dual candidacy, but that it is rather the issue whether the decision by the ECN to refuse to share the legal opinion with the applicant is an electoral issue. The basis upon which the ECN’s refusal is premised, is asserting its right of attorney/client privilege in relation to the legal opinion.

[35] I agree with Sibeya J when he said in Tjeundo  that, it is not for the court when analysing the pleadings in an attempt to resolve the jurisdictional challenge to say the alleged facts by the applicant would also sustain another claim in another court. The Legislature created the Electoral Court as a specialised court to deal with electoral issues. I am of the considered view that the refusal by the ECN to share the legal opinion which the applicant is seeking to be made available to it is not an electoral issue within the meaning s 168(1)(e), and does not qualify to be classified as an ‘electoral issue,’ or part of ‘an electoral process.’ It follows thus that this court lacks jurisdiction to adjudicate on whether the ECN is in law entitled to refuse to share its legal opinion with the applicant. That is a matter that falls outside the circumference of the powers imbued on this court by the Act.

Costs

[36] Even though the ECN initially sought a costs order, during oral submissions, Mr Akweenda informed the court, and rightly so, that the respondent was no longer persisting with a prayer for a costs order. Accordingly, the proviso of s 171 of the Act shall not apply. This is because there is no evidence that the applicant acted frivolously or vexatiously in instituting these proceedings.’

Determination

Held that section 162(2) of the Act provides that all matters arising before polling day in an election or referendum are adjudicated by an electoral tribunal, and all appeals against the decisions of the tribunal are heard by the Electoral Court. It follows thus from this provision that all pre-election matters, in the sense that they arise before the polling day, must be adjudicated by the electoral tribunal and only appeals may be heard by the Electoral Court.

Held that the refusal by the ECN to share the legal opinion which the applicant sought to be made available to it was not an electoral issue within the meaning s 168(1)(e), and does not qualify to be classified as an ‘electoral issue’ or ‘electoral processes.’ 

Held that the Electoral Court lacked jurisdiction to adjudicate on the issue whether the ECN was in law entitled to refuse to share its legal opinion with the applicant.

Court order

The point of law in limine raised by the respondent that the Electoral Court lacked jurisdiction to adjudicate the application was upheld. The application was struck from the roll, with no costs order being made.

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