Advocate Jeremy Gauntlett and lawyer Frank Pelser
The Supreme Court of Namibia on Friday reserved judgement in an application brought by five presidential candidates who participated in the 2019 Presidential Elections.
The five candidates are Mike Kavekotora of the RPD, Henk Mudge of RP, Ignatius Shixwameni of APP, Epafras Mukwiilongo of the NEFF and the independent candidate Doctor Panduleni Itula.
Five judges of the Supreme Court – Chief Justice Peter Shivute, Justice Sylvester Mainga, Justice Dave Smuts, Justice Elton Hoff and Lady Justice Baaitse E. Nkabinde.
Chief Justice Shivute announced after hearing the arguments from sides that the Supreme Court would deliver judgement after 14 court days – that is on 6 February 2020.
Two South African lawyers – Jeremy Gauntlett and Frank Pelser assisted by Elize Angula of AngulaCo Inc. represented the applicants.
Another South African lawyer William Rasenga Mokhare assisted by Sakeus Akweenda and instructed by the government attorneys represented the urban development minister (the first respondent) and the Attorney General of Namibia the second respondent).
Adv. Mokhare is also representing the Electoral Commission of Namibia (the third respondent) and its chairperson (the fourth respondent) with the help of Eliaser Nekwaya and instructed by the government lawyers.
The Applicants argued that the key legal inquiry to the challenge to the election’s declared outcome is whether the holding of the 2019 presidential election with no “verifiable paper trail” is invalid.
The applicants submit that such election is invalid and they would seek appropriate relief.
They further argued that the legal question stems from the way the urban minister implemented different provisions in the Electoral Act 5 of 2014 at different times.
“The Minister gazetting only two out of four sub-sections in the same provision, section 97. Section 97 provides for electronic voting under certain conditions.
“The effect of gazetting only two out of four sub-sections of section 97 was to delete conditions set by Parliament. The two sub-sections requiring simultaneous and parallel paper trail were not made law by the Minister,” they also argued.
Advocate Gauntlett said it was clear that the urban development minister’s action infringes on rights of voters and subsequently the democracy of Namibia since he took away voters’ protection.
“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, the responsibility to point out to the minister that a problem might arise. A letter exists that states 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,” he said.
The senior counsel also argued that it is the Supreme Court’s responsibility to declare itself on the constitutionality of the results if it gives the court the jurisdiction over the matter.
He suggested that the 2019 presidential election results should be set aside and a rerun should be held. In the event that electronic voting machines are to be used, then they that has to be accompanied by all provisions or else the manual ballot should be resorted to.
Adv Mokhare said the Supreme Court has no jurisdiction over some aspects of the application and that the applicants should have gone to other courts before coming to the Supreme Court. He further said that the Electoral Act states that EVM’s can be used without a verifiable paper trail.
Setting the 2019 presidential election result aside, Mokhare said, would cause financial chaos in the country as well as bring about several other issues.
“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.