The Affirmative Repositioning (AR) movement’s legality as an organisation came under the microscope yesterday in the electoral tribunal where it is suing the Electoral Commission of Namibia (ECN) and government for failing to implement continuous voters’ registration as required by law.
Eva Shifitoka, the legal representative of the head of state and attorney general argued AR as an organisation has no locus standi to be heard in the electoral tribunal. She stated that as an organisation, AR is not yet incorporated into the Act of parliament, its constitution and members of the association are unknown. Furthermore, there is nothing that indicates how natural persons share authority within the association.
Thus, the court should first decide if it has jurisdiction before it can entertain the merits of the matter, argued Shifotoka.
AR, which is registered as an organisation and scheduled to contest both the regional council and local authority seats in November, filed the suit to get an order that will compel ECN to implement continuous voters’ registration and direct the President to set a date for Keetmanshoop Urban constituency by-election to fill the vacancy left by Maxie Minnaar who died in August.
They further seek an order that will set aside ECN’s decision not to relax the timeline as contemplated by the Electoral Act in relation to the registration of organisations. They are further asking the court to compel ECN to adopt measures to mitigate Covid-19 regulations in order to enhance the right to political activity.
According to Shifotoka, the order sought on the by-election of Keetmanshoop Urban constituency would bear no effect as the President has already set 25 November as the date for the regional council and local authority elections.
AR’s lawyer Kadhila Amoomo argued the order sought against the President should be granted as he failed to file an answering affidavit or supportive affidavit opposing the matter.
AR is claiming that since 2014, when the Electoral Act was amended, to date, ECN has failed to properly implement the Act as required by law. They claim that ECN has been selectively implementing the Electoral Act without recourse.
The movement argues that ECN is required by the Electoral Act to carry out three types of voter registration processes; general voters’ registration, supplementary voter’s registration and continuous voters’ registration to ensure all eligible Namibians are registered to vote.
The ECN, AR argued, has only carried out general voters’ registration, supplementary voter’s registration.
“ECN will not suffer any prejudice if they are compelled by a court order to implement the continuous voters’ registration as required by law. This will not just be beneficial to current elections but all elections to come,” said Amoomo.
In a letter dated 16 July, ECN Chief Electoral Officer Theo Mujoro said the commission was unable to implement the continuous voters’ registration process due to budgetary and infrastructural constraints.
But, Amoomo questioned how much is required to register an eligible voter. Further stating that ECN has failed to avail a complete breakdown of cost in comparison to the budget allocated.
Eliaser Nekwaya, who was representing ECN, argued the Electoral Act does not empower it to relax the timeline for registration of organisation and should it relax the timeline, it would be in violation of its own laws.
Nekwaya explained when ECN suspended elections for Keetmanshoop Urban, it did so as empowered by the Act.
He said ECN will need a cut off period for voter’s registration because a voter’s register has to be complied.
He added that the electoral tribunal cannot decide on constitutional matters and thus should dismiss the application with cost.
Magistrate Uatjo Uanivi is scheduled to give a ruling in the matter on 7 October.