March 5, 2010

Poll case thrown out on technical grounds

A hard-fought challenge to Namibia's presidential and National Assembly elections of November 27 and 28 last year was thrown out by the High Court yesterday afternoon.
The challenge by nine political parties that emerged as the losers from the elections has failed on technical grounds. In two judgements delivered by Judge President Petrus Damaseb and Judge Collins Parker, the judges agreed that the parties' election applications against both the presidential and the National Assembly election had to be struck from the court roll because both applications were filed late in terms of the court rules and the Electoral Act.
The court ordered that the parties have to bear the legal costs of the Electoral Commission of Namibia and Swapo in the case. With the ECN having been represented by four instructed counsel, including a South African senior counsel, and Swapo by two instructed counsel, also including a South African SC, the legal bill that the nine parties will be burdened with is expected to run into hundreds of thousands of Namibia dollars at the least.
As on Monday and Tuesday, when Judge President Damaseb and Judge Parker heard arguments on the nine opposition parties' application to have the elections annulled or get a recount of votes that were cast in the polls, the public gallery of Court B in the High Court in Windhoek in Windhoek was filled to capacity when the court announced its decision in the case.
Swapo supporters in the public gallery, most of them clothed in party colours, erupted into applause, cheering, ululation and then a Swapo party song after the court had announced its decision and adjourned.
A rowdy celebration then spilled out of the courtroom and onto the steps and public space at the court's entrance.
In the judgements from both Judge Parker and Judge President Damaseb in which it was decided to strike the election challenges from the roll, the court did not go into any of the merits of the claims of irregularities and violations of the Electoral Act on which the nine parties had based their case.
The nine parties are the Rally for Democracy and Progress, DTA, UDF, Nudo, Congress of Democrats, All People's Party, Republican Party, Namibia Democratic Movement for Change, and Democratic Party of Namibia.
The election results were announced on December 4.
According to the Electoral Act, a court application challenging an election has to be lodged with the Registrar of the High Court within 30 days after an election result had been officially declared. The Act also states that the High Court must determine such an application within 60 days after it had been filed.
The 30-day period ended on January 4. On that date, at 16h30, the parties' application challenging only the National Assembly election was filed with the office of the Registrar. An amplified application, also challenging the presidential election, was filed on January 14.
According to the rules of the High Court, the office of the Registrar is open up to 15h00 on weekdays for the filing of documents, except for notices of intention to defend a case, for which the opening hours are up to 16h00. The court's rules also state that “in exceptional circumstances” or when directed to do so by the court or a judge the Registrar may accept the filing of documents at any time.
In this case, the nine parties should have placed sufficient evidence before the court to indicate what information they submitted to the Assistant Registrar that accepted the filing of their application on January 4 to show on what basis the Assistant Registrar decided that there were “exceptional circumstances” that warranted accepting the late filing of the case, Judge Parker stated in his judgement.
“I do not think the applicants are entitled to assume that just because the Registrar accepted the papers at that late hour, she must have exercised her discretion properly,” he stated.
He said in his view a failure to adhere to the peremptory time limits set in the Electoral Act and the court rules with an election application “is fatal” and “must, without allowance, result in nullification of the application in question”. He stated this is so if one takes into account that the time limits in the Electoral Act and the court rules bind not only litigants but also the court itself.
It is in the interest of the public that an electoral matter must be speedily determined, Judge Parker stated, noting that the legislature's wish to have an election case dealt with expeditiously also appeared from the provisions of the Electoral Act.
“In my judgement, the applicants were required to file the election application not later than 15h00 on 4 January 2010,” he stated.
With the application challenging the National Assembly election thus considered to be a nullity, it is “rudimentary logic” that it could not then be amplified to also encompass an attack on the presidential election, Judge Parker ruled.
In his judgement, Judge President Damaseb further decided that the applicants were also supposed to have furnished security for their opponents' legal costs on the presidential election application – and not only security for costs on the National Assembly election challenge. That failure to furnish security for costs on the presidential poll challenge alone was, in his opinion, sufficient grounds to strike that application from the court roll.
On Judge Parker's reasoning on the timing of the filing of the case he stated: “I am in agreement that unless there were exceptional circumstances the acceptance of the application by the Registrar was a nullity and there could have been no valid election application before court.” He stated: “Rules exist to promote predictability and certainty. The public expect their enforcement and 'justice' demands that the law is complied with.” He also stated: “There is a clear public interest that election disputes are quickly resolved so that there is certainty: either that there will be an orderly re-election or recount as directed by a court in the event it finds irregularities, or validating the election and thus bestowing legitimacy on those elected to proceed with the business of governing the nation.” On the parties' claim that the ECN frustrated their attempts to get quicker access to election material that they wanted to inspect to look for evidence of irregularities, the judge president said he got the distinct impression that the parties underestimated the labour that would be involved in going through what must have been masses of documents. That, though, is no basis for claiming “exceptional circumstances” that should allow the late filing of the case, he said.
The parties did not make out any good case to show why they were not able to file their case on time on January 4, he said.
He remarked: “It is apparent that their failure to come to court on time related substantially to the fact that they wished to access too much information, and were overwhelmed by the information they obtained in the process. To grant condonation in those circumstances would not advance the general public interest as it has the potential for encouraging 'fishing expeditions' before challenging election results.” The nine parties and their presidential candidates were represented by Reinhard Tötemeyer, SC, Albert Strydom and Andries van Vuuren, on instructions from attorney Tobie Louw.
Vincent Maleka, SC, Gerson Hinda, Sisa Namandje and Gerson Narib represented the ECN on instructions from the Government Attorney. Ishmael Semenya and Sackey Akweenda represented Swapo, instructed by Elia Shikongo. (The Namibian, Windhoek)

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