EXPLAINER: IPC’s Supreme Court case 2025

February 28, 2025 154

IPC leader Dr Panduleni Itula

IPC leader Dr Panduleni Itula argues that President Nangolo Mbumba unlawfully extended the voting period in 36 constituencies for three days

By Wonder Guchu

The Supreme Court will, on Friday, 28, 2025, announce its decision on the case where the IPC wants the November 27, 2024, Presidential elections cancelled.

This is one of the electoral cases before the courts.

The other case where the IPC challenges the National Assembly election results is in the electoral court.

Last month, the electoral court said it would not proceed with the case pending the Supreme Court’s ruling.

IPC leader Dr Panduleni Itula argues that President Nangolo Mbumba unlawfully extended the voting period in 36 constituencies for three days.

Dr Itula says Mbumba has no authority to extend elections, and that the extension raised concerns with the November 27, 2024, voting process.

Ballot shortage

Dr Itula also indicates that the electoral commission did not act according to the law to rectify the problem of ballot shortage.

According to Dr Itula, the shortage of ballot papers deprived people of the right to vote.

He accuses the electoral commission of consulting the attorney general and advising Mbumba to extend the polls.

The IPC leader says Section 6 4(1)(b) of the Electoral Act, which Mbumba cites to extend the election, does not authorise him to do so.

President Nangolo Mbumba

The President argues that Section 9 of the Interpretation Proclamation of 1920 guided him in exercising his powers.

No law was broken

Mbumba denies breaking any law and says he acted on the electoral commission’s advice to extend voting days at identified polling stations listed in the proclamation.

According to Mbumba, the Interpretation Proclamation 1920 becomes effective immediately after 24h00 after its publication.

The President argues that Section 9 of the Interpretation Proclamation of 1920 guided him in exercising his powers.

Mbumba cites Article 64 of the Constitution, giving the power to act as he did.

He adds that the courts cannot decide the election outcome, but the people can.

President-elect Netumbo Nandi-Ndaitwah

No grounds for disputes

Netumbo Nandi-Ndaitwah, who won the 2024 presidential election, says there are no established grounds for the application.

According to the Swapo Party, Mbumba used section 64(3)(b) to extend the election determined by Section 64(1)(b), which says the election period must be over one day and not more than 45 days after the nomination day.

Swapo further alleges that the application is based on false claims. The party denies any irregularities during the November 2024 Presidential elections.

The party dismissed the claims that the law does not allow using tablets in elections.

LPM leader Bernadus Swartbooi

LPM joins IPC

The LPM leader Bernardus Swartbooi, whose party has been allowed in on the case alongside IPC, wants the court to declare the Presidential election unlawful.

Swartbooi argues that allowing the results from the extended voting nullifies the other results from the initial proclaimed voting day, which was November 27, 2024.

The LPM accuses Mbumba and the electoral commission of inventing powers, saying neither the commission nor the President is authorised to extend the voting period.

The 2019 Itula election challenge

In 2019, Dr Itula dragged the electoral commission and the urban development minister to court, challenging the use of EVM without a verifiable paper trail.

Dr Itula and others wanted the Supreme Court to set aside the 2019 Presidential election and order fresh polls ‘without undue delay’.

The application was brought in terms of section 172 of the Act, which says, in effect, that the Supreme Court must decide any challenge relating to the return or outcome in a Presidential election as a court of first and final instance.

They argued that for the result of the presidential election to be set aside, the court should first set aside the decision of the minister to put into operation section 97 of the Act partially.

The parties further alleged that the selective implementation of section 97 amounted to a breach of the constitutional principles of separation of powers, democracy and the rule of law.

They also asked that the Electoral Commission of Namibia (ECN) decision to use electronic voting in the election without a paper trail be set aside.

The applicants also referred to several alleged irregularities relating to using Electronic Voting Machines (EVMs) during the election and concerns relating to the safe custody of EVMs before the election.

Electoral Act Section 97

On October 17, 2014, the then-minister responsible for regional and local government gazetted the Electoral Act 5 of 2014 and determined that the Act would come into operation on the date of the publication of the notice in the Gazette.

However, such promulgation, according to the minister, excluded the provisions of subsections (3) and (4) of section 97 of the Act.

Section 97 makes provision for the use of voting machines in elections.

The subsections that were excluded from coming into operation with the rest of the section provide that the use of voting machines was subject to the simultaneous utilisation of a verifiable paper trail and that where the results of the voting machines and the results of the paper trail did not agree, the paper trail results were to be accepted as the election outcome for the polling station concerned.

The partial promulgation of the Act meant that elections conducted after the Act came into operation would take place by way of voting machines but without a verifiable paper trail.

ECN’s argument

The court said the parties opposed the application on the merits and raised specific preliminary points of law. They argued that the court did not have jurisdiction and the competency to set aside the minister’s decision and the ECN’s decision to use EVMs without a paper trail. They asserted that section 172 of the Act does not authorise the Supreme Court to grant relief relating to the minister’s decision as a court of first instance and final recourse as such decision is unrelated to the Presidential election.

The ECN and the minister argued that Dr Itula should have gone to the High Court, which is the correct place to decide the issues raised by the applicants.

The ECN and the minister also argued that the applicants unreasonably delayed launching proceedings to review the minister’s decision.

They said the decision was made in 2014; the applicants had known about it. Some applicants participated in the 2014 elections as Presidential candidates but did not challenge the legality of that election.

It was also the respondents’ position that the issue of the lawfulness of conducting elections with EVMs but without a paper trail had already been tested and determined by the High Court in Maletzky & others v Electoral Commission of Namibia & others 2015 (2) NR 571 (HC).

They submitted that this judgment was not appealed against. It remained the law on that issue until such time that the Supreme Court had set it aside. The ECN was, therefore, entitled to rely on it.

The ruling

Having considered the application, the Supreme Court held that the applicant’s challenge falls within the provisions of section 172 of the Act. Therefore, the Supreme Court has jurisdiction to entertain the application.

The court further held that the narrow approach to the interpretation of section 172 proposed by the respondents was not consistent with the use of the wide word ‘any’ in the section. The position is also contrary to the constitutional values the electoral law seeks to promote.

It was also held that although the applicants should have challenged the minister’s decision well before elections, given the important constitutional issues raised in the application, the matter must be heard and the issues decided.

Accordingly, It was held that the minister’s determination was unconstitutional and invalid and therefore set aside.

The use of the phrase ‘subject to’ in section 97(3) meant that the use of EVMs under section 97(2) is conditional upon complying with section 97(3) and (4) of the Act.

The court reasoned that section 97 was a composite and integrated provision, and subsections (3) and (4) had to be put into operation together with the first two subsections.

Results

In determining the appropriate relief, the court considered Article 25 of the Namibian Constitution and other relevant factors and declined to set aside the election and direct a rerun.

Article 25 says in so far as it may be authorised to do so by this Constitution, Parliament or any subordinate legislative authority shall not make any law.

It says the Executive and the agencies of government shall not take any action which abolishes or abridges the fundamental rights and freedoms conferred by this Chapter, and any law or action in contravention thereof shall to the extent of the contravention be invalid: provided that a competent Court, instead of declaring such law or action to be invalid, shall have the power and the discretion in an appropriate case to allow Parliament, any subordinate legislative authority, or the Executive and the agencies of government, as the case may be, to correct any defect in the impugned law or action within a specified period, subject to such conditions as may be specified by it.

The Article further says in such event and until such correction, or until the expiry of the time limit set by the court, whichever be the shorter, such impugned law or action shall be deemed to be valid.

*Additional information from the Supreme Court 2019 ruling

Written by: Wonder Guchu

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