THE challenging of the Supreme Court’s ruling that there will be no re-run of the 2019 presidential elections has merits, according to human rights lawyer Norman Tjombe.
Speaking on Informanté Radio’s breakfast show, The Morning Mix, Tjombe stated that most of the provisions of the 2014 Electoral Act, except for the sections appealing for the use of paper trails with EVMs, were implemented.
Chief Justice Peter Shivute ordered that as from 20 March, no elections will commence without the utilisation of verifiable paper trails on the EVMs.
It was also found that the determination by the Minister that the provisions of section 97 of the Act were brought into force with the exception of sections 97(3) and (4) on 17 October 2014. This, the Chief Justice ruled was in conflict with the Constitution and is invalid. The respondents have since been ordered to pay two-thirds of the applicants’ legal fees.
Tjombe further stated that implementing bits and pieces of a specific law is wrong, and stated that provisions within the Electoral Act, section 115 of the Electoral act, states that if certain conditions are not met, the elections should be declared null and void.
The human rights lawyer, however, stated that this would not be an easy process if the Supreme Court declares something unconstitutional, as it would mean it is recognised as unconstitutional from the day it was implemented.
“All decision made by the current government from the 2014 elections would be considered null and void. Laws and policies passed by the president and ministers would be nullified,” Tjombe stated.
The Supreme Court ruled that there was no evidence of irregularities or of the impact the alleged irregularities has had on the Presidential election in selectively promulgating parts of section 97 of the Act which was adopted by the Legislature and signed by the President.
That section provides for electronic voting subject to certain conditions contained in section 97(3) and (4).
“These two subsections were excluded by the Minister when the Act was brought into operation. They require a verifiable paper trail when use is made of EVMs,” Chief Justice Shivute ruled, adding “The order of invalidity of the Minister’s determination should be effective upon the end of the current term of office of those elected in 2014 on 21 March 2020 and after those elected in the November 2019 elections are sworn in.”
The current and on-going by-elections will also not be affected by the order.