Namibia Economic Freedom Fighters v Electoral Commission of Namibia (EC 2/2024) [2024] NAEC 2 (8 August 2024)

‘Introduction

[1] Where the jurisdiction of a court or tribunal in a particular matter is challenged, such court or tribunal, must, before wandering around the issues raised by the parties, assure itself and the parties that it retains the necessary authority and competency to hear and adjudicate the matter before it. If the court or tribunal has no jurisdiction to hear and adjudicate upon the matter, it must guard against pronouncing incompetent orders and must inform the parties, at the earliest available opportunity, of its lack of the necessary jurisdiction in order to save time and costs.’

Facts 

On 17 June 2024, the Electoral Commission of Namibia (‘the ECN’) decided to deregister the applicant as a political party in terms of the Electoral Act 5 of 2014 (‘the Act’). The ECN deregistered the applicant on the basis of its alleged persistent non-compliance with the provisions of the Act requiring the submission of financial statements at the end of each financial year. The applicant (NEEF) brought an urgent application to review the decision of the first respondent to deregister it as a political party. The applicant further seeks an order interdicting the first and second respondents from implementing the impugned decision.

The applicant contended, on the merits, inter alia, that the ECN granted it a general extension for the submission of the financial statements to 30 June 2024, and before the deadline could be reached, the ECN abruptly decided to deregister it. The ECN denies such contention and states the contrary. The applicant further contends that it was never invited by the ECN to make representations or show cause why it should not be deregistered. This is also disputed by the ECN.

The ECN raised two points in limine, namely lack of jurisdiction and urgency. On jurisdiction, it was contended for the ECN that what the applicant seeks is review relief and that the powers of this court to review decisions of the ECN are limited to that which is provided for in s 168(1)(e) of the Act. It was argued for the ECN that in terms of s 168(1)(e), the review jurisdiction of the court is only available in respect of any decision of the ECN that relates to an electoral issue and further that no electoral issue arises from the applicant’s application.

The applicant contended the contrary, namely, that the electoral court retains the same wide powers as the High Court, as provided for in s 167(2) of the Act, and that the court should interpret the Act in a manner that embraces the political rights of the parties and persons, as opposed to shutting the door of the court to the litigants. 

It is the applicant’s case that s 168(1)(c) of the Act affords refuge to the applicant’s application as it gives this court the jurisdiction to adjudicate and decide any matter concerning any contravention of the Act. The applicant contended that the decision of the ECN to deregister the applicant contravenes s 152 of the Act, as the applicant claims that it was not given an opportunity to be heard before the decision to deregister it was taken, thus falling within the ambit of s 168(1)(c) of the Act.

Issues

Whether the court had jurisdiction to hear the application?

Discussion 

‘Discussion and analysis 

[29] I now consider it opportune to delve head on into the determination of the question whether or not this court has the necessary jurisdiction to adjudicate and decide the applicant’s application. In order to appreciate the scheme of the Act, I deem it fitting to commence by having regard to the preamble of the Act which provides as follows:

‘To provide for the establishment and constitution of the Electoral Commission of Namibia and its powers and functions; to provide for the registration of voters, nomination of candidates, conduct of the election of persons to the office of the President, conduct of the election of members of the National Assembly, conduct of the election of members of regional councils and local authority councils; to provide for the holding of referenda; to provide for the registration and deregistration of political parties and the funding of political parties and organizations; to provide for the establishment of the electoral tribunals and the Electoral Court and their powers and functions; and to provide for incidental matters.’ (My underlining)

[30] The preamble sets the tone for the establishment of this court with its powers and functions spelt out in the Act. 

[31] In s 167, the Act provides as follows:

‘167. (1) There is established an Electoral Court which is a division of the High Court of Namibia.

(2) Subject to this Act, the Electoral Court has, in the exercising of its powers and the performance of its functions, all the powers of the High Court conferred by Article 78(4) and 80 of the Namibian Constitution and the High Court Act, 1990 (Act No. 16 of 1990)…’

[32] The above-mentioned Art 78(4) of the Constitution reads as follows:

‘The Supreme Court and the High Court shall have the inherent jurisdiction which vested in the Supreme Court of South-West Africa immediately prior to the date of Independence, including the power to regulate their own procedures and to make court rules for that purpose.’

[33] Article 80 of the Constitution, on the other hand, provides as follows, particularly under sub-section 2:

‘The High Court shall have original jurisdiction to hear and adjudicate upon all civil disputes and criminal prosecutions, including cases which involve the interpretation, implementation and upholding of this Constitution and the fundamental rights and freedoms implementation and upholding of the Constitution and the fundamental rights and freedoms mentioned therein.’

Determination

Held: that an applicant, must, in the founding papers and in clear terms, allege and set out facts necessary to establish that the court has the requisite jurisdiction to adjudicate over the application. It is not for the court to look high and low for the allegations and facts proving jurisdiction in the founding papers.

Held that: the rendition of the mantra by the applicant that ‘It is unimaginable in a democracy like ours for the High Court to say to a litigant “sorry you are in a wrong court”’, is misplaced. This is because the above remarks were made by Mainga JA in Masule v Prime Minister of the Republic of Namibia and Others in reference to proceedings in the High Court, a court clothed with inherent jurisdiction and the jurisdiction to hear and adjudicate all civil disputes and criminal prosecutions, including cases involving interpretation, implementation and upholding the Constitution and the fundamental rights and freedoms, and not subject to the provisions of another legislation, which refused to exercise jurisdiction over a labour matter. Thus this matter is distinguishable from Masule.  

Held further that: the proviso that appears at the commencement of s 167(2) of the Act, which provides for the powers and functions of the electoral court, clearly states that such powers and functions are subject to the provisions of the Act. 

Held: that the legislature found it fit to specifically regulate the review of the decisions of the ECN under s 168(1)(e) of the Act and limited this court’s exercise of its review jurisdiction to any decision of the ECN that relates to electoral issues.

confers general powers on this court, cannot be resorted to in reviews in the face of the specific review provision. This is in keeping with the maxim generalia specialibus non derogant which means that a general provision should not be resorted to in order to override a specific provision or that where there is a conflict between a general and a specific provision, the specific provision must prevail. 

Held further that: the Act provides for different considerations in respect of the determination of objections raised under s 136 and the deregistration under s 152. The deregistration of the applicant was premised on alleged contravention of s 152(f) of the Act, for alleged persistent non-compliance with the provisions of the Act by failing to lodge its audited financial statements when due. The process of the determination of objections to the registration of a political party can therefore, not be equated to the process of deregistration of a political party.

Held: that the court is fortified by the fact that s 136(12) of the Act confers appeal powers on this court where a person is not satisfied with the determination of the objection in respect of the registration of a political party. In the present application, the applicant seeks review relief. The review jurisdiction of this court is specially limited to electoral issues, which this application is not. 

Held that: this court lacks jurisdiction to adjudicate on the review of the decision by the ECN to deregister the applicant as a political party.

Court order

The point of law in limine raised by the first respondent that the court does not have jurisdiction to adjudicate the application, was upheld. The application was dismissed with no order as to costs.

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