Though it might seem to some a petty issue, brought by candidates irritated with being sidelined from the National Assembly at the last minute, this is a case that goes right to the heart of what constitutes a democratic election. And the proper course for an electoral commission to adopt in order to be – and to be seen to be – independent.
The backstory is that Namibia had a national election in November last year. The Popular Democratic Movement (PDM), like other parties, put up a party list – names of candidates it nominated to fill any seats it might win in the elections. The electoral commission then had to ‘vet’ these names to ensure the nominees fulfilled certain legal requirements.
After the elections, but before the nominees from the different parties were sworn in, the PDM ‘withdrew’ six names from their list and replaced them with six other names. Two of the original PDM nominees then contested the last minute ‘re-arrangement’ and challenged the right of the electoral commission to have approved the changes.
A full bench of the high court – Judges Hosea Angula, Shafimana Ueitele and Thomas Masuku – heard the matter and delivered their decision this week, holding that the commission had acted outside its powers in allowing the substitution.
They said it was unacceptable that a political party could, before the elections, ‘parade’ certain candidates for the National Assembly, and then, after the polls, ‘put up totally different persons who were never “marketed” to voters as candidates.’ It could not be said that the ‘substitute’ candidates were ‘elected by the registered voters by direct and secret ballot’.
The law only allowed the commission to amend the ‘Gazetted list’ of candidates in rare circumstances, such as if someone on the list were to die or be expelled from their party before the date on which they were declared duly elected. The PDM’s six late substituted nominees were not ‘duly nominated’ as candidates for election. ‘They are therefore not eligible to become members of the National Assembly.’
In the view of the court, it was the commission – rather than the PDM – that made the changes. A party might request the commission to do so but it was the commission, as ‘custodian of the list’, that had to make or refuse to make such a change.
According to Norman Tjombe, arguing on behalf of the candidates sidelined by the PDM, the commission did not have the power ‘to accept’ post-election changes to the list made by a party. Only the commission could make changes, and then only in very limited circumstances.
In changing the list after the polls, the commission acted outside its powers. In doing so it also threatened its own independence. The commission was supposed to carry out its functions ‘independently of any direction or interference by any other authority or any person.’
Here, however, it had been ‘confronted’ by PDM, with a demand that the commission change its list – or face a court case to force such a change. The commission initially resisted – ‘which in our view was the correct thing to do’ – but then it requested opinion from counsel about the legality of making a post-election change.
Effectively, this amounted to ‘soliciting legal opinions on behalf of political parties,’ said the court. In doing so, the commission ‘compromised its independence and impartiality.’ By allowing itself to be ‘pressured’ into adopting the position ‘peddled’ by the PDM, it took a position that amounted to siding with a political party ‘against elected candidates’ of that same party.
Like a judicial officer, the commission should not join issue with a party challenging his or her decision and ‘file opposing affidavits to defend his or her decision.’ In this case, the commission ought rather to have abided the decision of the court, perhaps filing an affidavit with the court and thus putting the information it thought important before the bench, and explaining what it had taken into consideration in arriving at the decision to act as it did.
‘We urge the commission to keep these remarks in mind in its future conduct so that it may preserve and protect its independence and impartiality in carrying out its functions in terms of the constitution and the Act.’
PDM had urged the court, if the judges found against it, to make an order that would only affect such a situation in the future, and that would not apply to the presented substituted candidates.
The substituted members had been sworn in and were already taking part in activities of the National Assembly. Some of them had quit their previous employment to take up these seats and, if they had to leave the Assembly because of this case, they would have no job to go to.
The judges, however, refused to oblige. They said the six substitutes were not eligible to be sworn-in; it would be ‘odious’ for the court to ‘overlook an illegality’ and allow them to continue to sit when their membership of the Assembly ‘is characterised by illegality’. They had known there was a pending court action challenging their membership of the Assembly, yet they persisted in taking the oath of office, something that ‘does not bode well for them or for the rule of law’.
Quite accidentally in the course of the case, the court discovered that the PDM was not the only party to have changed its list after the polls. Since the only party involved in the case before it was the PDM, the judges decided the best action to take was to ‘draw the attention of the Speaker of the National Assembly to the violation of the law and the constitution’ that the court had found. The Speaker should then take the steps necessary ‘to preserve the integrity and lawful composition of the National Assembly.’
* The court's decision has already been met with strong criticism by some politicians, who - despite admitting they had not read the decision - said the judgment had 'no credence in the rule of law', and that it was a 'political judgment'. An appeal against the decision appears highly likely, according to remarks made by PDM executive members on Twitter.