• March 29th, 2020

Top court upholds poll outcome … unanimous judgement orders paper trail for EVMs

President Hage Geingob will be sworn in for a second term next month after the Supreme Court yesterday upheld the results of last year’s presidential vote in a unanimous judgement. 

The outcome of the 2019 presidential elections was challenged by Dr Panduleni Itula, who stood as an independent candidate, as well as Henk Mudge of the Republican Party, Epafras Mukwiilongo of the Namibian Economic Freedom Fighters, Ignatius Shixwameni of the All People’s Party and Mike Kavekotora of the Rally for Democracy and Progress in an attempt to have last year’s presidential election nullified and held again.

However, there was partial victory for the applicants after the court found that the directive of then minister regional, local government and housing Charles Namoloh to bring into operation the use of electronic voting machines (EVMs) without a verifiable paper trail is in conflict with the constitution and thus invalid and set aside.

The five-member panel, however, declined to declare the 2019 presidential elections null and void and to order a re-run. 

Chief Justice Peter Shivute who wrote the judgement in agreement with Judges of Appeal Sylvester Mainga, Dave Smuts, Elton Hoff and Acting Judge of Appeal Bess Nkabinde said that the irregularities complained about by the applicants was explained away satisfactorily.

They further stated that whilst the transparency and credibility of the election was compromised by the lack of a verifiable paper trail, the question to answer is whether it impacted adversely on the electorate’s right to vote.

“This was not established on the applicant’s evidence,” the judges found. 
They went on to say it needs to be stressed the ECN proceeded without a paper trail on the clear assumption that it was entitled by law to do so.

The minister had in 2014 not put the sections pertaining to the paper trail in operation and when this was challenged, the High Court held up the minister’s determination and sanctioned the use of EVMs without a paper trail.

“The ECN had thus set out to act in accordance with the law and comply with the principles as put into operation by the minister and found by the High Court to be lawful,” the judges stated.
They continued that it could have been an entirely different story if the ECN had acted in defiance or in breach of its duties as set out in the Electoral Act.

According to the judges, the 2014 elections were conducted in accordance with the minister’s determination to proceed without a verifiable paper trail, which has now been established to be in conflict with the constitution and the applicant’s failure to raise the issue and effectively and timeously challenge the lack of a paper trail after 2015 and 2016 and before the election was material.

“The applicants sat back at their peril in waiting until the very eve of the election before taking up this issue – a mere month before the holding of elections,” the judge said and continued: “Plainly, parties seeking to challenge the conduct of an election are under a duty to act ‘timeously ensuring that political violations can be remedied by the granting of (an) interdict or other form of relief’.”
The judges, however, slammed the minister and the ECN for the selective promulgation of the Electoral Act. 

According to them, the legislature put the provisions of the sections authorising the use of a paper trail in as a safeguard and the minister effectively deleted this safeguard enacted by parliament.
They continued, this breached the separation of powers provided for in the constitution.
The judges further said the minister plainly exceeded his powers to selectively put in force the power to use EVMs without the conditions placed by the legislative for their use.

“In exercising his power to place the Act into operation, it was not open to the minister to subvert the intention of the legislature by implementing the use of EVMs without the safeguards expressly enacted by the legislature to which that use was made subject,” they said.

The court also found that the minister’s determination is unconstitutional and invalid as a consequence.
The judge awarded partial costs to the applicants, including two thirds of their total costs on the scale of one instructing and two instructed counsels.
Jeremy Gauntlett assisted by Frank Pelser on instructions of AngulaCo Inc. represented the applicants and the respondents by William Mokhare assisted by Sackey Akweenda and Elias Nekwaya. – rrouth@nepc.com.na

Roland Routh
2020-02-06 07:44:20 | 1 months ago

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