Namibia Economic Freedom Fighters’ lawyers have blamed their current legal woes on the ruling Swapo Party. 

This is after Namibia’s immigration authorities blew a hole in the legal proceedings launched by NEFF against their deregistration as a political party by ECN. 

The NEFF were supposed to be represented by senior counsel Dali Mpofu and Lerato Moela in the ongoing
case against the ECN, but immigration refused to grant them work permits,

described by Kadhila Amoomo, who acted on behalf of NEFF as ‘Swapo tactics.’

Swapo Party deputy secretary general Uahekua Herunga said NEFF was proving to Namibians that it is not a trustworthy organisation. 

“It shows that NEFF cannot be trusted with becoming a ruling party in this country. How can they organise the Namibian people if they can’t even organise themselves?” Herunga asked. 

He added: “They [NEFF] are an irresponsible organisation who can’t even make a distinction between Swapo and the government. Home affairs is a government institution, while Swapo is a political party.”
NEFF was deregistered by the Electoral Commission of Namibia (ECN) on 17 June for failure to comply with the Electoral Act, specifically the failure to provide audited statements. They are asking the Electoral Court to suspend the decision pending the outcome of the review they instituted to set aside the decision of the ECN to deregister the party.

ECN, represented by Advocate Gerson Narib on instructions of the attorney general, lodged an objection from the start, arguing that the Electoral Court does not have the jurisdiction to hear the matter and that it should have been lodged in the High Court instead. He submitted  that the Electoral Court does not have jurisdiction to hear administrative matters, but only matters relating to elections. This is primarily an administrative matter between the ECN and the NEFF, he argued. 

During oral arguments before a full bench made up of Deputy Judge President Hosea Angula, Orben Sibeya and Beatrix de Jager, Narib argued that the Electoral Court is limited to what it can adjudicate on, as it does not have the inherent powers of the High Court. He further argued that all election matters arising before polling day are adjudicated upon by an election tribunal, and all appeals therefrom are addressed to the Electoral Court. Since this is not an election- related matter, the correct platform will be
the High Court, Narib stated. 

In fact, he said, the Electoral Court has no jurisdiction on any matter arising before polling day in an election. 

“In our respectful submission, it is clear from the Act that the present application cannot be considered to relate to a matter arising before a polling day, which is subject to the jurisdiction of an electoral tribunal, while the Electoral Court’s jurisdiction is limited to appeals from decisions of electoral
tribunals,” Narib emphasised. 

He added: “The present application
simply does not relate to any election
irregularities, but simply deals with the deregistration of a political party for its flagrant and persistent failure to comply with the Act.” 

He then asked the court to find that the application is an application in terms of civil proceedings that should be dealt with in the civil court as a normal civil proceeding. 

Quoting the judge president in his opening line, Amoomo said: “It will be unimaginable in a democracy like ours to say that you are in the wrong court.”

He argued that the Electoral Act
interpreted by the ECN to deregister the
party is peculiar and strange.

“The Act is peculiar and strange to shut the doors of this court for the applicant. Even if political parties would like to fight against ECN, they should be able to have access to the Electoral Court,” Amoomo stressed. He further said that the decision of the ECN was taken in context with the looming elections, without giving his clients the right to a reply. “The doctrine of legality, which is an incident of the rule of law, is one of the constitutional controls through which the exercise of public power is regulated by the Constitution. It entails that the Legislature and the Executive are constrained by the principle that they may not exercise power and perform no function beyond that conferred upon them by law,” Amoomo argued. 

He further said the ECN went beyond their powers when it unilaterally decided to deregister NEFF without giving them the opportunity to be heard. 

Amoomo said the application is of significant constitutional importance in that it concerns the implementation or otherwise of a drastic and unprecedented decision to deregister an existing political party with actual citizen support and current representation in the National Assembly. 

He said the rule of law prescribes that all organs of State are bound by the relevant constitutional provisions, as well as any legislation whose constitutionality is not under attack. He further said the sections of the Act that the ECN invoked to deregister NEFF are fatal to their reliance to justify the impugned cancellation decision, and stand a good chance to be set aside in due time. 

As such, he said, there is no doubt that the applicants will suffer irreparable harm if the matter is not heard as a matter of urgency, and interim relief is not granted. Both parties did not make an application for costs. 

The judges will deliver judgement on the jurisdiction on 8 August at 10h00.

-rrouth@nepc.com.na