Windhoek - Five candidates who contested the presidential election last month, including Dr Panduleni Itula, who stood as an independent, have approached the Supreme Court to challenge the outcome, which declared incumbent President Hage Geingob as duly elected.
The challenge is headed by Itula who is standing by his claims that the election was rigged in Geingob’s favour. Itula received 29.4% of the total presidential vote, while Geingob scooped a reduced majority of 56.3%. The other applicants in the matter are Henk Mudge of RP, Epafras Mukwiilongo of the Namibia Economic Freedom Fighters (NEFF), Ignatius Shixwameni of APP and Mike Kavekotora of RDP.
In a founding affidavit submitted by Itula’s lawyer Elize Ndjavera Angula to the Supreme Court on Wednesday, Itula is seeking that the presidential election be declared void and also for the court to overturn the result “on the grounds of irregularities”.
“The questioned Presidential election did not comply with [the] constitutional requirement. The election did not take place in accordance with the principles and procedures determined by Parliament,” said the dentist-turned-politician.
“It occurred in accordance with only part of the operative statutory provision enacted by Parliament, as selectively brought into operation by the executive,” he argued.
According to Itula, in bringing the entire Act into effect, the Minister effectively disengaged two crucial subsections from the statutory framework enacted by Parliament, which he said are the ones providing for the necessary checks and balances adopted by Parliament to ensure free and fair elections via electronic voting machines (EVMs).
Itula further says the selective entry into force of some parts of section 97 while leaving the dominant provision of that section as enacted by Parliament in legal limbo, is unconstitutional. “It also breaches the doctrine of separation of powers,” Itula claims. “It is constitutionally repugnant for the executive to elect which parts of a composite statutory provision it deems desirable, and to permit only such parts to enter into force – effectively excising integral parts of the provision,” he added.
According to Itula, the constitution does not permit parliament to devolve on the executive any competence to select certain sub-provisions into effect while disengaging their accompanying safeguarding sub-provision. “Section 209 (2) of the Act therefore cannot be construed as permitting this. It expressly refers to composite ‘provision’, not sub-sections. It is legally-incompetent, I am advised, to adopt a word-changing or extensive interpretation which would render section 209 (2) unconstitutional,” Itula said.
In his brief comparative analysis, Itula said in Germany after the 2005 election two voters brought a case before the German Constitutional Court after unsuccessfully raising a complaint with that country’s Committee of the Scrutiny of Elections. He said the case argued the unconstitutionality of electronic voting machines, that they were unconstitutional in toto and that it was possible to hack the voting machines, thus the results of the 2005 election could not be trusted.
He said the German Constitutional Court upheld the first argument, concurring that the use of NEDAP voting machines was unconstitutional. According to him, the court noted that, under the constitution, elections are required to be public in nature and that all essential steps of an election are subject to the possibility of public scrutiny unless other constitutional interests justify an exception.