Six former Popular Democratic Movement (PDM) lawmakers have dragged their party, the Electoral Commission of Namibia and the National Assembly to court, demanding over N$1.5 million each. This is money they believe they lost in salaries, allowances and benefits which could have accrued to them had they been sworn in as Members of Parliament in 2020, and not two-and-a-half years later. The ex-lawmakers assert, fervently so, that they were unlawfully excluded from Parliament after the 2019 National Assembly elections’ outcome, despite being officially nominated and elected.
The plaintiffs are Mike Venaani, party leader McHenry Venaani’s father; Reggie Diergaardt; Charmaine Tjirare; Yvette Araes; Hidipo Hamata and Maximalliant Katjimune.
In the combined summons filed at the High Court by their lawyer Norman Tjombe yesterday, they state that they were part of the PDM candidate list submitted to the ECN for the National Assembly elections held on 27 November 2019.
They argue that their names were officially published in the Government Gazette on 6 November 2019.
They were therefore “duly-elected members of the National Assembly with effect from 21 March 2020”.
The sextet, who have come to be known as the ‘PDM6’, said their party wrongly submitted a new list of names after the election, a list which removed them.
They say the ECN, instead of rejecting this unlawful list, went ahead and declared the new names as elected members.
“In violation of section 110(3)(b)(i) of the Electoral Act and at the unlawful insistence or demand of the first defendant [PDM], the chairperson of the second defendant [ECN] unlawfully announced and declared persons whose names were not on the published list,” the summons states.
They accuse the National Assembly of participating in the alleged wrongdoing.
“On 20 March 2020, the third defendant [National Assembly] unlawfully swore in persons who were not duly elected as members of the National Assembly, and unlawfully excluded the plaintiffs,” the complainants state.
They added that the actions of the three defendants were unconstitutional, wrongful, unlawful and in violation of sections 78 and 110(3)(b)(i) of the Electoral Act and article 49 of the Namibian constitution, read with schedule 4 to the Namibian constitution.
One of the central arguments is that the plaintiffs’ positions on the original party list qualified them for the 16 seats which the PDM won in the National Assembly.
“The first plaintiff was placed number 16 on the list of candidates,” the court papers show.
The others were placed at numbers 12 to 17, all within the cut-off.
They note that one candidate, Frans Josef Bertolini, declined to take up his seat.
This shifted the list upward, giving all six plaintiffs a rightful place in Parliament. “Each of the plaintiffs moved down one number as a result,” they argue.
Despite all these changes, the plaintiffs were left out of Parliament due to what they describe as deliberate and unlawful actions.
They want 20% interest per year on those amounts, starting from the date of judgement until full payment is made.
Additionally, they seek the full legal costs, and “further or alternative relief”.
“The plaintiffs pray for an order and judgement against the first, second and third defendants, jointly and severally,” Tjombe submitted.
The first defendant is the PDM, represented by secretary general Manuel Ngaringombe.
The ECN and the National Assembly are named as co-defendants, accused of playing roles in the plaintiffs’ exclusion from Parliament.
All three are being sued together.
The plaintiffs say the trio should be “jointly and severally liable”.
This means if one pays, the others are freed from paying the same amount.
Context
Back in 2022, the Supreme Court ruled that six PDM members – Esmeralda Esme Aebes, Johannes Martin, Kazeongere Tjeundo, Godfrey Kupuzo Mwilima, Timotheus Sydney Shihumbu and Pieter Mostert – were unlawfully added to the National Assembly list.
Thereafter, they were replaced by Hamata, Araes, Katjimune, Diergaardt, Tjirare and Venaani senior.
Since then, they have consistently argued they were duly elected, but have not been compensated for prior losses, current losses and future losses.
They insisted that the National Assembly was fully aware from the onset that the swearing-in of the ‘PDM 6’ was illegal.
“We specifically alerted the Speaker of the National Assembly as well as the Secretary of our quest to seek judicial advice on the way forward. Two-and-a -half years later, the judgement came through,” said Tjirare in Parliament in his penultimate address.
She said she fervently went to court for those years to get what was rightfully hers.
“Paragraphs 41 and 42 of the Supreme Court judgement, respectively, state that they want to respect the separation of powers, and will not impose on the National Assembly as to how to rectify the situation,” she said at the time.
Tjirare added that remedies must be implemented by the Supreme Court for the National Assembly to act accordingly towards the Members of Parliament who were “rightfully and duly elected”.
The lawmaker described the matter as an unfathomable and mind-boggling injustice,“…especially seeing that it was being committed by lawmakers and their administrators to fellow lawmakers with the audience of other lawmakers”.
They want their perks to be backdated to 20 March 2020.
The group of six, through their lawyer Tjombe, have been insisting that “the actions of the ECN were no doubt unlawful, as confirmed by a full bench of the Electoral Court of Namibia and the Supreme Court of Namibia. It was unlawful for the secretary of the National Assembly to have accepted the list of persons to be sworn in, which list excluded our clients”.
Tjirare said the ECN, the PDM and the National Assembly are not being accountable for what transpired.
She threatened further litigation to get the matter resolved.
“I should go to court to once again highlight the very lawlessness that was in your faces in 2020, and wait for another two-and-a-half years for you to be told the exact same thing that I said in 2020 once again? I do not have the time, courtesy nor the patience to wait for years for what is rightfully mine,” she maintained.
Last year, former National Assembly secretary Lydia Kandetu said Parliament is not liable to give the members backpay who joined the House two years later while their seats were occupied by fellow party members. “We are only liable for paying a member of the National Assembly. When the first group was gazetted by the ECN, those names were forwarded to us. We started paying them.
When they were removed following the court ruling, we stopped paying them, as they ceased to be members [of the National Assembly]. Following another ECN gazette of new names, we started paying the new MPs,” she said then.
Kandetu said the National Assembly does not decide who gets paid.
“We don’t remove or bring people to Parliament,” she stressed.