Constitutional quagmire




The ongoing court challenge, in which eight opposition political parties are challenging the 2009 National Assembly (NA) results, will have far reaching consequences if passed in their favour as laws passed by the current Parliament will be null and void.

A leading academic at the Polytechnic of Namibia, Dr Andrew Nikondo warned that a verdict in favour of the court applicants might threaten the peace and stability currently prevailing in the country.

When quizzed by The Villager about what might happen should the courts grant the opposition parties their wish and declare the 2009 National Assembly (NA) election illegal, Nikondo said the likely scenario is that the current Legislative House would have to be dissolved.

“That would be a very costly exercise as it could threaten the peace and stability that we currently enjoy while fresh elections will have to be called,” the academic said before boldly declaring that he does not see how any court could give a ruling in favour of the applicants given the complexity of the issue.

“At best, the courts will only advice on future steps to be taken to avoid a similar scenario should some irregularities be found,” he stated.

He further said that it is not unusual for courts to take long to pass their verdicts in sensitive cases such as the election court challenge.    

Another constitutional expert, Dr Audrin Mathe, speaking in his personal capacity, noted that the Constitution does not say what should happen in cases of this nature.

“I don’t believe the courts would rule to nullify the election results of the last general election.

The opposition parties themselves have necessarily legitimised the results by showing up to work for every parliamentary sitting,” Mathe opined.

He further asserted: “What the courts would likely do is to say that while certain processes may not have been followed to the letter, they are not sufficient enough to nullify the entire outcome of the elections.

But if they were to go to the extreme of nullify the election results, which I don’t think they will, it would render the entire process a constitutional quagmire.”

The principle applicant in the court challenge that has been dragging on since December 2009 and Rally for Democracy and Progress (RDP) secretary for international relations, Libolly Haufiku says it is up to the Supreme Court to direct what must be done.

Haufiku would not delve much on the issue saying: “Those are legal issues.

The Supreme Court will have to advise on how we should proceed as the current Parliament might be busy entering into contracts and signing agreements illegally.”

He notes that the court will have to work in cohorts with legal constitutional experts to advice the nation on the course to follow should it wholly or partially rule in favour of the court applicants.

The official opposition member says that the opposition parties received a letter from the Supreme Court that indicated that the court is in the process of announcing the appeal ruling, six months after the case was closed.

The court initially promised to deliver judgement in the first quarter of this year but failed to do so prompting the eight opposition parties and some non-governmental organisations to stage a peaceful demonstration last week demanding a verdict as soon as possible.

The petition addressed to Chief Justice Peter Shivute read in part: “Having noticed with deep concern the mounting public anxiety from the delayed Supreme Court pronouncement of a verdict with regard to our court appeal, we are concerned that the current delay undermines the rule of law and the credibility of the judiciary.”

The petition further demands that Shivute does everything in his power to ensure that the court verdict is aimed publicly as a matter of urgency to ease anxiety amongst the electorate.

“While the verdict is withheld, the current Parliament continues to pass laws and disburse taxpayers’ money at the risk that the lawmakers might not be legitimate,” the petition continues.

The opposition parties gave the Supreme Court an ultimatum of delivering its ruling within 30 calendar days or the applicants would be compelled to explore other democratic avenues.

Meanwhile, the secretary to the Cabinet, Jakes Jacobs, refused to comment through his secretary when quizzed about whether or not the NA has already sought legal advice on what should happen should the applicants succeed in their ploy.

Both the Attorney-General, Dr Albert Kawana and Prime Minister, Nahas Angula could not comment on whether or not Government has solicited any advice so far on what could transpire should the court applicants be successful as the former claimed that he or anyone from the executive arm of the State are prohibited by the Constitution to pronounce themselves on issues that are before the judiciary, before the courts make a pronouncement.