Slamming your head against a brick wall

14 February 2020
To ask the Supreme Court to review its conclusions is within the rights of any Namibian citizen.  But, smashing your head against a brick wall to do so, could be ill-advised.
We believe that the current appeal of former independent candidate and current Swapo member Panduleni Itula and the other political parties, is a waste of time.  Asking the Court to review itself could be interpreted as throwing shade onto their capacity or integrity.  Also, these legal wrangles are exhausting the general public (many of whom don’t understand what is going on).  We believe that more of Itula’s banked political capital is being expended in the wrong place at the wrong time.
In his original response to the decision, Itula affirmed his support for Geingob as the duly elected President.  People around the country lauded him as a patriot who was interested in the country before his own concerns.  This new case throws all of that in the trash.
If there is a legal point outlined in the Court’s ruling that is incorrect or for which there is a viable legally based counter-argument that was not considered by the Court in their deliberations, there could be a sound basis on which to ask for a review.   But, to keep battering at the doors of the justice system, when you have had your day in the highest court in the land, is tantamount to an act of desperation. 
We are not lawyers.  But, in our amateur layman’s view, we noted that Itula and his co-plaintiffs put a case before the Courts challenging the legality of the November elections due to the lack of a paper trail for each electronic voter machine (EVM) used.   As a remedy, they demanded the elections be nullified and re-run. 
According to the subsequent ruling given by Chief Justice Peter Shivute, the law authorizing use of those machines obliges those running the elections to have a paper trail attached to each machine.  This was not done because the minister at the time, invoked an unconstitutional line-item veto of that requirement.  The minister overstepped his authority. 
Lest we try to dump blame on one person, take note that the entire Cabinet approved what the minister did (and likely told him to do it).  The Attorney-General at that time failed miserably in his job to check the constitution vs the decision of the government to unilaterally suppress a part of a law. 
All that said, the bottom line is that the Court has ruled that the EVM paper trail must be there.  Any elections where the machines were used and there was not a paper trail as per the Act, were held illegally.  We are all together on this part.
Here is where we depart.  Chief Justice Peter Shivute concluded that the remedy for the illegality was not going to be the re-run of the presidential election.
He said, in effect, the government messed up, but, the punishment will not be what was asked by those bringing the case. It will be what we, the Court, decide.  Itula disagrees and is taking another run at getting the remedy he wants.
Perhaps Itula’s inner circle and those who are around him are urging this continued legal skirmish.  Perhaps the recent Malawi ruling for a rerun of their elections, stimulated Itula and company to try again.  Maybe there is some high level legal logic used there, that could shift the reasoning of the Supreme Court here.  In any event, we submit that the people in the country, whom Itula ran for president to represent, are ready to move on. 
We have not seen a universal national outcry for an elections re-run.  People are not marching in the streets about this issue.  There are no labour union or school strikes.  Delegations from the business community have not demanded audiences with the president calling for a re-run.  We received no letters from the public calling for a re-run nor are there key international bodies calling for a re-run. 
Indeed, on social media and in other arenas, there are pockets of people with sincere disagreement with the Court’s remedy and want a re-run.  There are minor conclaves of those who are myopically anti-Swapo on any issue.   And, of course there are the perennial haters who just want national chaos, constitutional crisis and destabilization in Namibia at all costs.  A re-run of ALL elections where EVMs were used without paper trails could satisfy them. 
We won’t even mention the tiny political parties with elusive constituencies that have nuisance legal cases pending where they too demand nullification of the 2019 elections.
Our major concern about this renewed legal actions is this:  the Supreme Court of Namibia, in its wisdom and legal sagacity, applied its mind, did the research and took a vote.  They announced their decision.  All of us are bound by their ruling whether we like it or not.  If the Chief Justice had, in the original decision, ordered a re-run of every election where EVMs were used with no paper trail, the country would have to support that. 
Likewise, since the Court did not decide to re-run the elections as the remedy to the illegality, the country must support that.  We cannot affirm the quality and credibility of our Courts only when they rule how we like.  If ever we descend to the level of saying that only decisions we like are to be followed, Namibia would be another failed state. 
For those in disagreement with the Court’s ruling, there are remedies to be considered.  The incoming Parliament could amend the language in the Act mandating a paper trail and make it a preferred option. 
Amendments usually take years.  But, Swapo still has the simple majority in Parliament and the National Council to get it to Geingob’s desk for a quick signature. 
The best remedy is for the ECN to rise to the challenge and get the paper trail system in place as a matter of urgency.  It is cheaper to get things right with the EVMs than to do a re-run of ALL elections where the voting machines were used with no paper trail.
Slamming your head against a brick wall achieves nothing but a concussion or worse.  Itula risks many headaches with this drawn out legal action.  As he does not hold media conferences and take questions, we are forced to question his end-game.  Is this merely an intellectual exercise? Does Itula realistically think that in a re-run, he will win the presidency?  Is it a personal campaign of self-aggrandisement?  Who is the real beneficiary of Itula’s second charge up the legal hill? 


The Windhoek Observer is an English-language weekly newspaper, published in Namibia by Paragon Investment Holding. It is the country's oldest and largest circulating weekly.

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