Namibia court weighs up election rerun

NAMIBIANS can expect to know early next month whether the country will face the historic prospect of having a presidential election rerun.

The Supreme Court will deliver its judgement on a legal challenge to the 2019 presidential election by 6 February, chief justice Peter Shivute said after hearing oral arguments on the challenge in the country's top court on Friday.

The court will have to decide whether to nullify the government's decision not to implement two crucial provisions of the Electoral Act, which provide for the use of electronic voting machines (EVMs) with a voters verifiable audit paper trail, and whether to set aside the 2019 presidential election and order a repeat of the election.

Dentist Panduleni Itula and his fellow presidential candidates are challenging the Electoral Commission of Namibia's use of EVMs without a verifiable paper trail in the 2019 presidential election.

Itula participated in the presidential election as an independent candidate, while Henk Mudge represented the Republican Party, Mike Kavekotora stood for the Rally for Democracy and Progress, Ignatius Shixwameni was the representative for the All People's Party and Epafras Mukwiilongo represented the Namibian Economic Freedom Fighters.

Itula lost the contest to fellow Swapo member and incumbent president Hage Geingob after gaining approximately 29% of the total votes, with Geingob receiving 56% of the votes cast.

Itula and the other candidates are asking the Supreme Court to set aside the decision by the then minister of urban and rural development, Charles Namoloh, that the parts of the 2014 Electoral Act requiring a verifiable paper trial for EVMs would not come into operation with the rest of the act. They are claiming that Namoloh's decision was inconsistent with the Constitution and thus invalid.

The five presidential candidates also want the Supreme Court to set aside the decision of the Electoral Commission of Namibia (ECN) to use EVMs in the 2019 presidential election, and to set aside the poll and order a fresh election that complies with the Constitution and the Electoral Act.

Chief justice Shivute, appeal judges Sylvester Mainga, Dave Smuts and Elton Hoff, and acting judge of appeal Bess Nkabinde reserved their judgement after hearing oral arguments on the election challenge on Friday.

Addressing the court on behalf of Itula and the other four candidates, South African senior counsel Jeremy Gauntlett argued that Namoloh did not have the power to decide that the part of the 2014 Electoral Act requiring a verifiable paper trail for electronic voting machines should not be implemented with the rest of the act.

Gauntlett stressed that the Electoral Act allows the use of EVMs in elections, while specifically stating that this is subject to the existence of a verifiable paper trail for each vote cast.

He also argued that the act's section 97, which allows the use of EVMs in elections, cannot be dissected to avoid the implementation of the requirement of a verifiable paper trail.

The presidential election should be set aside and the Supreme Court should order that a fresh election – without the use of EVMs that do not have a paper trail – be held within 30 days, or any other period prescribed by the court, Gauntlett suggested.

On behalf of the government and the electoral body, senior counsel William Mokhare argued that a challenge of the minister's decision not to implement the part of the law requiring a verifiable paper trail with the use of EVMs should have been taken to the High Court first. This should have been their first recourse, since Itula and the four other applicants want that decision to be reviewed and set aside, instead of the Supreme Court being approached directly on that issue.

Mokhare also argued that there was an undue delay of five years after the 2014 Electoral Act came into operation before a legal challenge of the use of EVMs without a verifiable paper trail was launched.

During Mokhare's argument, chief justice Shivute remarked that “a fundamental difficulty” on his part was that the parliament ordained that EVMs may be used in Namibian elections, subject to there being a paper trail for votes. The decision not to implement the part of the law requiring a paper trail effectively undid what the legislature decided, the chief justice added.

Judge Nkabinde also remarked that Namibia's parliament speaks for the people, and that the president then agrees with legislation passed by the parliament and signs it into law, and questioned whether it could be acceptable that someone then decided to implement only part of the law. It seemed that the separation of powers between the legislative and executive branches of the state had been breached, she remarked.

Judge Mainga, though, questioned whether it could be said that the absence of a verifiable paper trail denied people the right to vote.

Mokhare noted that a High Court judge ruled in 2014 that the use of EVMs without a verifiable paper trail was legal. That judgement has not been set aside and remains an authoritative decision on the use of EVMs without a paper trail, and the ECN was entitled to rely on it, he argued.

Mokhare further argued that if the court finds that the decision in October 2014 not to implement the Electoral Act's requirement of a verifiable paper trail for EVMs was unconstitutional and invalid, it would not be in the interest of justice to set aside elections in which EVMs have been used since then.

Itula and the other applicants are not challenging the legality of the 2019 National Assembly election.