The Supreme Court has refused to hear an application by 2019 independent presidential candidate Dr Panduleni Itula to have the electoral challenge outcome reviewed as per Article 81 of the Namibian constitution. The country’s top court had ruled against a re-run of the presidential election following an electoral challenge by Itula and four other presidential candidates.
Following the Supreme Court judgement, Itula had lodged a fresh application in which he sought that the top court review its ruling. He was, however, dealt a major blow after the registrar of the Supreme Court refused to entertain the application, in a letter addressed to his lawyers on Wednesday.
In response to the letter, Itula’s lawyer Elize Angula questioned the powers of the registrar in arriving at such a decision. Angula wrote back to the registrar to inform her that she is applying on behalf of Itula to have the matter enrolled as an appeal pursuant to rule seven of the Supreme Court rules.
According to Angula, the response of the registrar was not written on behalf of the five judges who sat on the election challenge brought by Itula and is not the court’s letter.
In any event, the letter to the registrar reads, to her (lawyer Angula’s) client’s knowledge, the five judges have not convened (least of all in open court, and accordingly the parties having any hearing) to deal with the notice and supporting affidavits, and now answering and replying affidavits filed by all the active parties.
“Not, equally significantly, does your letter purport to have been addressed to us at the behest of the Chief Justice,” Angula said. “This, too, is explicable; the notice and papers filed by the parties were expressly not directed to the Chief Justice. Thus the letter is also not from the Chief Justice.”
She further said that it is accordingly only to be inferred that the registrar herself directed the letter to Itula, by claim of her own authority. But, Angula stated, no statute, or rule of court of which her client is aware, vests the registrar with the power to pronounce upon a proceeding in the terms set out in the letter. “The pronouncement was not made on lodgment, nor following it. The process indicated in the notice has been allowed to run its course. The respondents themselves acted in terms of that process and indeed their answering affidavits themselves expressly anticipated a hearing following, at which they asked to present an audiovisual record (if needed). The process initiated by the notice is complete, other than the requested (judicial) directions,” Angula charged.
She went on to say that in the explicable absence of any claim in the letter to any authorisation either by the court or any claim in the letter to legal authority vested in the registrar by statute or the rules, her client regrets that it can only be inferred that the letter dismissing declining to enroll the matter was written without legal authority and is therefore ineffective. Itula together with Henk Mudge, Epafras Mukwilongo, Ignatius Shixwameni and Mike Kavekotora brought an application shortly after the elections to have the presidential election declared null and void because of the absence of a verifiable paper trail. On 5 February Chief Justice Shivute who wrote the judgement in agreement with Judges of Appeal Sylvester Mainga, Dave Smuts, Elton Hoff and Acting Judge of Appeal Bess Nkabinde directed that the directive of then minister of regional, local government and housing Charles Namoloh, to bring into operation the use of electronic voter machines (EVMs) without a verifiable paper tail, is in conflict with the constitution and thus invalid and set aside, but declined to declare the 2019 presidential election null and void and to order a re-run of the election.