On Friday, 13 December 2024, the Electoral Court ordered the Electoral Commission of Namibia (ECN) to grant the Independent Patriots for Change (IPC) and the Landless People’s Movement (LPM) access to specific statistical electoral data pertaining to the recentl-held National Assembly (NA) election. 

This case raises several curious questions. For brevity, only two issues are reflected on in this opinion piece. These are the legal strategy adopted by the opposition parties, and the NA – Presidential-elections-challenge-divide laid down in the Electoral Act.

To start with, it is worth pointing out that none of the parties are alleging electoral irregularities at this stage.  Also, neither of them is challenging the legality of the 28 November Presidential Proclamation. In fact, the orders requested from the court by the parties are mirror images in terms of substance, and only differ in respect of election dates. 

Both parties are requesting access to the total number of votes cast, rejected, counted, spoilt, including the total number of voters who voted outside their constituencies during recently-conducted elections. The IPC’s access to information request is confined to the election conducted on 27 November. That of the LPM, on the other  hand, relates to the two extra voting days, which occurred on 29 and 30 November. This strategy begs several questions. For instance, what happened to their earlier assertions that the Presidential Proclamation was unlawful from the onset? 

By not challenging the Presidential Proclamation, are the parties not thereby condoning and/or lending legitimacy to an alleged unlawful act? Could it be that the parties first want to assess how the 29 and 30 November voting affected them? If this is true, it would speak worrying volumes about their commitment to the principle of legality and the rule of law.

Furthermore, none of the parties requested the Court for an order for the unsealing of the electoral material. They, arguably, realise that they do not have the evidence to convince the court to grant such an order. Can it be said that the parties are on a fishing expedition? 

In other words, ‘let us request an order to allow permission to inspect and verify the electoral documentation, thereby phishing for imaginary irregularities and non-compliance with the Electoral Act’. Why go to court for such an information request? Is the information you are requesting not already in the public domain? Did you not have political party agents stationed at all relevant stages of the electoral process? Granted, many people voted outside their constituencies. This is so because Namibia under the current statutory scheme is regarded as one constituency for purposes of the Presidential and National Assembly elections. Why cast aspersions on the ECN for this? 

Be that as it may, the leniency of the Electoral Court to grant the access to information requests of the IPC and LPM is to be applauded. 

The ECN, in equal measure, should also be lauded for not having opposed the data requests of the two parties. This is a big win for transparency, accountability and embedding a culture of justification. The inspection of the electoral material in respect of the NA elections will accordingly be conducted by five persons as designated by the parties on 18 and 19 December 2024 in the presence of the Namibian Police and ECN officials.

Furthermore, parties who participated in the NA elections may delegate one person to observe the inspection exercise. What the parties will uncover from this inspection exercise will ultimately determine, whether or not the election outcome for the NA elections will be challenged or not. 

Crucially, whatever irregularities and non-compliance with the law is uncovered during the inspection exercise will have to meet the stringent requirements of sections 114 and 115 of the Electoral Act. 

Section 114 deals with the unsealing of electoral material i.e. ballot boxes. Any unsealing can only happen if so ordered by a court of competent jurisdiction. Such an order, importantly, is only granted where the court is satisfied that sufficient evidence has been produced to warrant an unsealing order. In this context, the burden of proof will be on the opposition parties to produce such evidence. 

Section 115, on the other hand, deals with the nullification of an election. It establishes materiality as the threshold for invalidating any elections in Namibia. It expressly stipulates that only material irregularities and non-compliance which undermine the statutory scheme warrant the nullification of an election. 

The point here is that all errors are not treated equal in law. Some will have more serious consequences than others, thereby requiring the invalidation/nullification of an election. Conversely, some errors will be so immaterial that invalidating an election would be inappropriate in each instance. The proverbial ball in is the IPC’s and LPM’s courts. 

Lastly, in terms of the Electoral Act, challenges pertaining to the National Assembly elections must be instituted in the Electoral Court/High Court. In contrast, those relating to the Presidential elections must be instituted in the Supreme Court, which sits as a court of first and final instance in such matters. 

The absurdity of this divide is playing off in real times, and for all of us to see. This explains, for instance, why the access to information requests of the parties are confined to the National Assembly elections’ returns. It is safe to assume that similar data requests in respect of the Presidential elections’ return will be imminently lodged with the Supreme Court. 

The NA-Presidential-elections-challenge-divide is, in my view, artificial, cumbersome, costly and, strictly speaking, unnecessary. What logic informs this divide? It makes Supreme Court judges super-deciders and statutory demi-gods when it comes to issues pertaining to Presidential elections returns. They are the only ones who adjudicate over such matters. And, their decisions are final and binding, and not subject to appeal. Supreme Court judges are human beings, and thus fallible.  The fact that they are elevated to superheroes when it comes to Presidential election challenges reinforces a demi-god leadership culture. The repugnant NA-Presidential-elections-challenge-divide is most certainly one of the series of electoral legal reform proposals which is to result from the post-election audit, and a key takeaway of the IPC & LPM v ECN case.

*John B. Nakuta is a social justice scholar. He is a life activist on justice, human rights, the rule of law and governance. This article is written in his personal capacity.