ECN sued over Article 47

PDM councillor drags electoral body to court

13 November 2019 | Local News

Popular Democratic Movement (PDM) Opuwo regional councillor Kazeongere Tjeundo has launched a court bid to be placed back on the party's candidate list for the National Assembly election, after the Electoral Commission of Namibia (ECN) enforced Article 47 of the Namibia Constitution against candidates who hold certain public positions.

Among those affected are civil servants, National Council members and local and regional councillors. Tjeundo fought in the High Court yesterday to hear his application heard on an urgent basis, ahead of special voting today.

He said he wants to participate as a National Assembly candidate in the 27 November general election without being coerced into sacrificing his career until he is elected.

He has asked the court to relax or set aside the ECN directive, which he described as “repressive and irrational”, and order that candidates may retain their jobs until they are elected and take up their positions.

This has far-reaching implications for candidates across the political spectrum who have either resigned or were removed from party lists.

Arguments on whether the matter is urgent or not were herad by Acting Judge Orben Sibeya yesterday afternoon.



Absurd

In his founding affidavit Tjeundo argued that the ECN's flawed interpretation of the law creates unnecessary unemployment risks for eligible public service candidates.

“This is an onerous and unnecessary public interest liability or burden on a public servant such as myself, who is not yet elected and who desires to participate in the political process, irrespective of what the unpredictable outcome might be.”

He further argued that a spot on the candidate list is no guarantee of a position in parliament.

Being forced to resign, as a public servant, “creates an absurdity in that it penalises a citizen of Namibia”, he said. He said “all other citizens in all other vocations who equally qualify” to be candidates are not subjected to this treatment and it thus constitutes unfair discrimination.

Tjeundo argued the ECN essentially “coerces a candidate such as myself into resignation under duress”, while violating their constitutional rights.

He said the ECN's interpretation and directive is flawed, and “essentially a denial of a public servant candidate's right to pursue political activity without placing into jeopardy their careers as public servants.”

He added the directive, in terms of Section 77 of the Electoral Act of 2014, undermines the right of parties to put forward the candidates of their choice.

Unfair

Tjeundo said the PDM's decision to withdraw his candidacy on 23 October, was due to “undue influence” and further stressed that the directive was “contrary to the practice since independence.”

He underlined that despite a joint paper submitted by parties following the directive, expressing their disagreement with the ECN directive, the ECN failed to “properly reconsider its position and persisted in implementing [the section]”.

The ECN is opposing the application. In a responding affidavit, chief electoral officer Theophilus Mujoro argued that apart from questions around lack of jurisdiction and locus standi, the urgent application had no merit, and Tjeundo approached the High Court too late, without a valid reason.

He argued the case was lodged on 8 November, and set down to be heard a day before Namibian citizens in foreign countries and law-enforcement and defence force members were scheduled to cast their votes. Tjeundo, however, argued that following the 3 October release of the ECN decree, and the later directive, he first consulted with the ECN, and then sought legal advice.

“I have not caused my own urgency nor have I delayed in bringing this matter before court.”

Mujoro argued that political parties were notified on 3 October about the directive, with the position of the ECN set out clearly at that time, giving Tjeundo time to lodge his case earlier.

Mujoro added that Tjeundo's demands are not in line with the country's law and constitutional provisions governing elections and the eligibility of candidates.

Instead, Mujoro accused Tjeundo of acting in his own personal interest, not in that of the public's interest, and that he “intends to frustrate the elections being conducted by the ECN”.

Sibeya late yesterday afternoon dismissed the application because of lack of jurisdiction, saying he would deliver reasons on or before 22 November. The ECN had argued that the matter should be heard by the electoral court.

JANA-MARI SMITH