NON-LITIGATION MECHANISM, A SOLUTION TO THE IMPASSE?

By Cde. P.T. Shikale, Namibia

The litigation battle spare headed by RDP has created ample materials for constitutional law experts and political science scholars to dissect Namibia’s adolescent constitutional democracy. They raise many of the most important public law principles: constitutionalism, the rule of law, the independence of the judiciary, separation of powers, prosecutorial independence and many more. Whilst it is not my place to criticize unduly the impending legal action instituted, with respect, I submit that I do question the need of such a law suit as the legal provisions are, in my view, unambiguous and clear which should be construed in their ordinary meaning and in substance and not in form. Interpreting the law otherwise, it portends a calculated attempt to mislead.

Sections 36 and 116 of the Electoral Act 24 of 1992 do not allow for an election to be set aside unless there is enough ground affecting the results of such election and substantial evidences of overwhelming irregularities that allow for a nullification of the entire process. Indeed, successful electoral petitions do not automatically translate into the losers winning the case even if the Court did not refuse to grant an expedited hearing in the application attempting to challenge the validity of the election as is the case with the 9 opposition parties that filed a 2nd application in court claiming to have unearthed Prima Facie evidences of alleged ‘gross irregularities’. ECN, as a respondent on one hand, could file a Notice of Motion with the High Court Registry to have the petition dismissed for lack of merit while the Plaintiff, on the other hand, must demonstrate that there is a realistic prospect that the violations alleged in its complaints are real. In case either of the plaintiff or the respondent is not happy with the ruling of the High court, they could approach the Supreme Court for recourse. In the meantime, a constitutional crisis is formed and the electorate is held hostage to the caprices of a few individuals.

It is now clear that the opposition’s game plan and their backers included the dispute over the elections’ results after realizing that the planned ‘youth protest’ did not yield the desired results of flaming dissent for the government to succumb and collapse in the face of internal pressure. Once again, those of us, who accurately predicted, that the “politically induced controversy is but part of a larger political jigsaw puzzle whose tentacles stretch far beyond the immediate”, are vindicated. Based on a doughty critical journalism, On July the 31st, I wrote an article disproving the pronouncements by the opposition of ‘a crude rigging of elections in advance’. On September the 4th, I predicted 18 to 20% of votes cast for the opposition and a whopping 72% and above for the ruling party retaining its two-third majority which is 48%. I also accurately predicted on September 11th that SWAPO will walk away with 54 to 55 seats. In October the 18th, The Southern Times journalist, Olley Maruma, warned Namibians about ‘the west’s hand in elections’ citing the Zimbabwe case since every election lost by the oppositions in Africa has always been dismissed, by the oppositions and their backers of western governments, as “fraudulent”. Likewise in Namibia, in numerous statements issued long before the election, the opposition had already decided that the election would not be “free and fair” in an attempt to cast a shadow on the legitimacy of the elections in case they were won by the ruling party.

The question is; will the election litigation lead to a constitutional crisis and allow the judiciary to encroach on the powers of the legislature and the executive? Will the fate of the Nation be decided by non-elected and noncountable judges with the possibility of the ruling party seeing its victory and/or two-third majority pluck out of its jaws by a possible Cohabitation, viewed that the President-elect is sure to be sworn-in come March the 21st but not the new Parliamentarians? Will the COD, SWANU and RP lose their seats; should a recount and/or a re-run take place? Should Namibia follow the Taiwanese ‘Non-litigation vote recount mechanism’ to avoid similar incidents in the future? To answer these questions and others, let us dissect our subject matter comparatively speaking, to come to a conclusive answer to the political impasse.

A constitutional controversy occurred in the 2000 American Presidential Election when The Republican candidate George Walker Bush and his Democrat rival Albert Arnold Gore came extremely close in the vote count. The initial results showed Gore winning 267 electoral votes and Bush 246. Neither of them reached the 270-vote threshold to announce victory. Who would pick up the 25 electoral votes left in Florida became the crucial question. The initial count revealed Bush leading by 1,784 votes or a 0.03% margin. According to the election law of Florida, when the vote difference is smaller than 0.5%, a computer recount is automatically initiated and this recount narrowed Bush’s lead down to 327 votes. As a result, the Democrats chose four counties in which they had stronger influence for a manual recount. Bush immediately filed to the courts to prohibit the manual recount. 27 litigation battles ensued as a result of this controversy and Bush was announced the winner in less than two months before the election controversy of the century came to a conclusion.

“Similar election disputes occurred in Taiwan after a very tight race in the 2004 Presidential Election. The results of the election showed that the margin between both candidates was only 29,518 votes (0.22%). The loser in the election filed a suit for litigation against the validity of election and the invalidity of the elected. In response, the court decided to conduct a full recount. Ballots were inspected and only 2 out of every 10,000 votes were found to be questionable, a mere 0.02% small margin compared against the 13,749 polling stations. Two years later, the same thing occurred in 2006. The court complied with the request of the plaintiff and ordered a recount of all ballots (including unclaimed blank ballots). Only 25 votes were found questionable. Once again the election operations were proven objective, just and impartial,” wrote Joo-Cheong Tham, Associate Lecturer at the School of Law and Legal Studies at La Trobe University in Australia.

With the just ended 2009 Presidential and parliamentary elections in Namibia and for a second time since the 2004 vote recount precedent set by Judge President Damaseb, nine opposition parties, spear headed by RDP, filed a second application law suit for litigation in court, with very contradictory and ill-prepared demands asking for a recount in Windhoek and against the validity of the parliamentary elections based on thirteen alleged irregularities ranging from what they term “unrealistic higher voter turnout, the tendered votes, ‘ghost voters’, the alleged absence of voter registration card numbers on counterfoils of ballot books as well as the alleged absence of some voters on the voter’s roll” reported New Era’s journalist, Toivo Ndjebela. Will the court comply with the request of the plaintiff or alternatively dismiss the plaintiff’s application for lack of merit and ill-prepared affidavits that do not provide substantive evidences of alleged irregularities? What is sure to happen is that smaller parties such as SWANU, RP and COD may lose out their seats in case a re-run is conducted. RDP may also lose their number 8,7 and 6 candidates on their list, leaving them only with 5 to 6 seats and a mere 9.5% because even those political proselytes and hitchhikers that were taken by the euphoria of the Obama slogan, would again want to change camp.

In Taiwan, the unrest brought on by litigations over two major elections made the government and the opposition to think about introducing a vote recount mechanism system that would empower the court to initiate a recount without going through regular litigation procedures. The main feature of this mechanism is to solve disputes promptly since the biggest controversy in an electoral litigation is the vote count. Intrinsically, the recognition of whether a vote is valid is no more than a fact-finding task which leaves no much room for argument and relieves the plaintiff and the defendant from time-consuming litigation procedures cutting directly into the core of a dispute. This adequately decreases the chances of concerned parties using election disputes as an excuse to finger- pointing election authorities at will. The mechanism solves three significant issues. Firstly, the secrecy surrounding the financiers of political litigation who might be third countries with vested interest; Secondly, this is an arena where lawyers battle with appeals to the law and the costs of proceedings can be very substantial, and if political litigation becomes the norm, it will then become another way of insulating the major political parties against the smaller parties that are not well off and using the courts as a platform and play ground for political games. Lastly, it solves the issue of partisan non-elected and non-accountable judges who might flex their muscle undermining the separation of powers and imperiling our constitutional system, which is designed to protect popular selfgovernment against a judicial oligarchy.

We should embrace and espouse the notion of love for the apex law of our country to honor the legacy of those who made supreme sacrifices for the Land.

To do otherwise or let these be hijacked by individuals known and unknown would be a gross neglect of our constitutional and patriotic duty. ‘Let us not dwell on the parochial provincionalism of apostasy but let’s build’.