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Judgement reserved in watershed election challenge

Judgement reserved in watershed election challenge

Niël Terblanché

Chief Justice Peter Shivute has reserved judgement in the application by the independent presidential candidate to have the results of the Presidential and National Assembly elections held at the end of November last year set aside.


A full panel of five Supreme Court Judges heard the arguments of the applicants and the respondents’ challenging the use of Electronic Voting Machines without a verifiable paper during the elections while the Namibian Electoral Act states clearly that a method of verifying results after the fact should indeed exist.


Chief Justice Shivute indicated that the full panel of Supreme Court Jusices will have to deliberate carefully on the submissions before them and that he will hand down judgment on 6 February 2020.


In the submission of arguments by Senior Advocate Jeremy Gauntlett on behalf of Dr. Panduleni Itula and his four co-applicants it became clear that the second respondent, the Minister of Urban and Rural Development ignored certain parts of the electoral act which infringes on rights of voters and subsequently the democracy of Namibia. He argued that the minster removed the protection of the voters by omitting provisions.


“The question remain did the minister have the power to only implement half of provision 97. Was it not the Electoral Commission of Namibia’s, as an independent body with the power to do so, responsibility to point out to the minister that a problem might arise. A letter exists that state the ECN saw the omission of these important electoral provisions as an escape clause. Software is not always reliable and if a discrepancy arises the paper should win,” Advocate Gauntlett argued.



The senior advocate submitted that the results of the national elections should be set aside and that a new round of elections hould be held. He added that if Electronic Voting Machines will be used that it shuld be done with all the provisions in place or that a manual ballot shoud be conducted as is still the case in most other countries.


“The electorate did not have the right to vote in their fullness which translates o the infringement of their constitutional rights. It is the Supreme Court’s responsibility to declare itself on the constutionality of the results if that is the case which gives the court the jurisdiction over the matter.


Prejudice voters confronted with the fact that their vote is recorded correctly. Parliament directed that a parallel system should run concurrently ask that rerun happen within 30 days of .


Senior Advocate William Mokhare on behalf of the respondents in the matter argued that the Supreme Court of Namibia does not have jurisdiction over certain aspects of the application. He argued that the applicants should first approach the proper courts in this regard to resolve the relevant matters before approaching the Supreme Court.


Advocate Mokhare argued that according to the Electoral Act that EVM’s can indeed be used without a verifiable paper trail. He said the act protects the ECN as the body that implemented the electoral provisions. He said the applicants focussed on a breached provision that was never in question before the current matter.


He argued that any remedy that would set aside the results of the elections would cause untold chaos to the state in terms financial and other burdens.
Advocate Mokhare further argued that the matter was never treated as very urgent and the few irregularities detected during the conduct of the elections does not constitute a irregular conduct across the thousands of polling stations.


“This Court should dismiss this application because the appropriate provisions were not addressed by the applicants. They did not prove any irregularity in the elections is protected by Article 115 of the Act,” he argued.


Advocate Gauntlett during the re-examination of the respondents’ submissions argued that any election can be declared free and fair by observers, but stated that if such elections did not follow the appropriate laws and provision than it should be declared illegal.


He argued further the Supreme Court does have the jurisdiction to hand down judgement in the matter because an infringement of voters’ rights occurred and that that fact alone makes the case constitutional.


The Senior Advocate argued that should the court find in favour f the applicants that the respondents would suffer no prejudice.


Advocate Gauntlett requested the court to rule that a rerun of the elections should occur 30 days after judgement has been handed down but left the final decision in this regard in the hands of the Supreme Court Justices.


Chief Justice Shivute indicated that the full panel of judges will be working diligently on the judgement and that he would hand down their findings during the first week of February this year.

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