Supreme Court upholds challenge to EVMs without paper trail …WRP, SWANU launch new challenge

07 February 2020 Author   Jeremiah Ndjoze
Barely two days after the failure of five opposition political parties to challenge the results of last year’s disputed presidential election, the country’s only two socialist parties are attempting a renewed High Court challenge of the results of both the Presidential and National Assembly elections held in November last year.  
A notice of motion filed in the High Court on 10 January 2020 indicates that the two parties, the Workers Revolutionary Party (WRP) and SWANU of Namibia, will seek an order declaring the outcome of the general elections of November 2019 null and void.  They also demand a retraction of the declaration of victory by the incumbent, Hage Geingob.  They further demand an order that will specifically restrain justices Peter Shivute and Petrus Damaseb from swearing the incumbent in, as the duly elected president of Namibia. The official swearing in ceremony is slated for 21 March, 2020.
However, it appears that a kink is already appearing in this prospective challenge on jurisdictional grounds.  It has been suggested that their challenge should be launched with the Elections Tribunal in the first resort, instead of the High Court.
On Wednesday, the Supreme Court rejected a challenge by independent candidate Panduleni Itula, joined by the leaders of the Rally for Democracy and Progress (RDP), Republican Party (RP), Economic Freedom Fighters of Namibia (EFF), as well as the All People’s Party (APP), to set aside the outcome of the disputed presidential poll held in November 2019 and to order a re-run. “We decline to set aside the elections and to order a re-run,” Chief Justice Peter Shivute said when reading out the Court's decision.
However, the applicants scored a partial victory when the court ruled that the Minister of Urban and Rural Development did not have the powers to enforce the Electoral Act selectively in 2014, especially the application of section 97 without subsections (3) and (4).
Sub-section (3) provides for the use of voting machines subject to the simultaneous utilisation of a verifiable paper trail, while subsection (4) further provides that in the event that the results of the voting machines and the results of the paper trail are at variance, the paper trail results should prevail.
By the time of Wednesday’s Supreme Court challenge, both subsections had still not been brought into force. That is why Chief Justice Peter Shivute, who delivered the ruling on behalf of the entire Court, found that the ECN’s decision not to use a Verifiable Paper Audit Trail (VVPAT) with the Electronic Voting Machines (EVMs) was unconstitutional and should be set aside.
Effectively, this landmark ruling which was widely hailed across the political spectrum, means that starting on 21 March (or before, should the Minister table the necessary amendment to comply with the Supreme Court ruling), no elections will be conducted in Namibia without a verifiable paper trail.
According to the two parties, the question of the use of the EVM’s during past elections raise very important constitutional issues regarding the sovereignty of Namibia and the fact that any determination of unconstitutionality, should be retroactive.
“That is the only legal remedy that is available, with serious implications for the subsistence of the rule of law. A ruling of unconstitutionality cannot be deferred,” insisted Hewat Beukes, the leader of the WRP.
The parties maintain that the courts are obliged to protect the sovereignty of Namibia and in this case, they have failed, because they (courts), including the Electoral Commission of Namibia (ECN), in effect allowed the Indian government and military to control and determine all democratic processes and outcomes in Namibia.
They further claim that all attempts to obtain the specification for the EVM’s have been dismissed on the grounds that they are the intellectual property of the Indian Army and by implication the Indian government.
Following the judgement, Itula congratulated Hage Geingob, urging his supporters to respect the ruling and to accept and respect the incumbent as the duly elected head of state, while Attorney-General Albert Kawana described the judgement as fair and balanced.
On the contrary, the leader of the Landless People’s Movement (LPM), Bernadus Swartbooi, claimed that the ruling of the Supreme Court is an indication that the highest court in the land has been captured and the judiciary is loyal to the executive.
“Paraphrased, the court ruling declared that both the 2014 and 2019 elections were conducted in an unconstitutional manner, which then nullifies every other decision that was taken in government based on their outcome.  But the court still goes on to say that there will be no re-run of the elections and that the president will be sworn in,” Swartbooi said, adding that this is tantamount to the Zimbabwenisation of the court system, a situation where the courts are not allowed to find fault in anything that government does.
He maintained that in this instance the Supreme Court was part of the ‘Deep State,’ which already took a decision to uphold the original decision and only had to find reasons to justify that position. He revealed however, that his party did not expect a different outcome and knew that the challenge was an exercise in futility.
“We congratulate Itula for his tenacity in this matter and the slight victory, but on the (elections) rerun, we already decided that we are not going to use a Swapo court, manned by Swapo judges to challenge Swapo,” he declared.
Meanwhile, many Namibians have taken to social media to discuss the ruling, with some expressing outrage, dismay and disbelief in what is considered a political ruling, instead of a legal one. Others, of course, view the ruling as an outcome that confirms the rule of law and the fact that Namibians have always been able to resolve their differences amicably and without violence.
Before the court challenge, there were fears of violence and chaos, leading the Inspector General of the Namibian Police, General Sebastian Ndeitunga, to issue a memo to all commanders to prepare for the worst and to be on standby to maintain order.
Approached for comment yesterday, Theo Mujoro, the chief electoral officer of the ECN declined to comment on the ruling. “I do not wish to respond in a piecemeal manner. We are working on a comprehensive response, which we will make available, as a paid advertisement, to all local media on Monday."
Meanwhile, it has emerged that the full implementation of the verifiable paper audit trail would cost the taxpayer no less than N$130 million. A submission to the Parliamentary Committee on Constitutional and Legal Affairs last year identified several shortcomings, among them possible paper jams, compromising the secrecy of the vote, as well as potential miscommunication between the EVMs and the paper trail device.


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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