Last throw of the dice

Analysts divided on Itula's chances in Supreme Court

13 December 2019 | Politics

JEMIMA BEUKES AND OGONE TLHAGE



Electoral Commission of Namibia (ECN) chief electoral officer Theo Mujoro is adamant that they will be able to produce a paper trail of results from the controversial electronic voting machines (EVMs) used in the 27 November general election, “when a competent court orders them to do so”.

He was responding to independent candidate Panduleni Itula giving notice that he will be approaching the Supreme Court to challenge the results of the presidential election.

Mujoro explained they were in consultation with government attorneys.

Analysts also weighed on Itula’s affidavit yesterday, with constitutional expert Nico Horn saying it was probably one of the best election cases in years, because the Supreme Court would not have to find that anybody cheated.

Horn said the court only needed to find that the result could not be reliably corroborated by anything in the EVMs.

Late last month the ECN announced that President Hage Geingob had been re-elected for a second term and had garnered 56.3% of the presidential vote, while Itula secured only 29.4%.

However, a week later on 5 December 2019, the ECN updated its results for the Windhoek Rural Constituency after confirming that 7 000 votes for Itula had mistakenly been allocated to United Democratic Front (UDF) presidential candidate Apius Auchab.

Itula’s lawyer Elize Angula last week asked the ECN for access to all electoral materials used in the presidential election, including the authenticated printout of voting results at all the polling stations, access to all EVM motherboards, memory cards and inspection reports for the voting machines, among other things.

The information was supposed to be provided by last Thursday, with Angula saying failure to do so by the ECN would result in Itula approaching the Supreme Court.

On Wednesday afternoon, Itula gave notice of his intention to approach the highest court in the land and included a 126-page affidavit and annexures outlining why the presidential election results should be nullified. He wants the court to order a rerun as soon as possible.

Itula is being supported in his court bid by Republican Party (RP) president Henk Mudge, Namibia Economic Freedom Fighters (NEEF) president Epafrans Mukwiilongo, All People’s Party (APP) President Ignatius Shixwameni and Rally for Democracy and Progress (RDP) president Mike Kavekotora, who appear as applicants.

There are 29 respondents cited, who will have to decide whether they will oppose the application.

Missing EVMs cited

Itula cites the recent revelation by the ECN that EVMs booked out for the Swapo Party Elders Council (SPEC) congress in 2017 had gone missing.

“Since July 2017 up to the presidential election in 2019 there thus existed ample opportunity for gaining intimate knowledge of the machines’ hardware and software.

“The risk of discovering means of tampering with the EVMs is real, as lawyers and politicians pointed out immediately when the news first broke in October 2019.

“They cautioned that the election could be rigged and the integrity of its outcome would become questionable.

“Yet, the self-same models of EVMs were used one month later during the 2019 elections. This without the safeguards parliament enacted, a verifiable paper trail,” said Itula in his affidavit.

Horn said Itula is correct to say that without a paper trail the entire election process becomes unmeasurable.

He added Mujoro had made a mistake during the elections when he said anyone could access a paper trail if so needed, which according to insiders does not seem to be the case.

“Now, Dr Itula says there is no way that anybody can tell him how he voted and how anybody can find out because there is no paper trail.

“And therefore there is no way that an appellant or an applicant can prove that there was no cheating, because it is only figures that you are dealing with. You cannot recount like in the olden days.

“And you cannot in any way sort of way measure the correctness of the results or how a specific person voted by going back to his vote.

“So his point is that no matter how good the rest of the machine is set up and what else it can do, the major thing needed for a second run at the counting is absent.

“There is no way that you can rerun the machine and get a different result or that you can rerun in such a way that it will show defaults or faults,” said Horn.

More evidence of manipulation

Political commentator Graham Hopwood said he was quite surprised that the court documents are focused on the issue of Section 97 of the Electoral Act, and whether it was legal for the clauses relating to the paper trail to be suspended.

“I was expecting some evidence of possible manipulation of results to be included. However, we will have to see how the case develops and if further evidence is introduced.

“Perhaps the complainants think the EVM issue has never been fully considered by a court, since technical and timing issues have been used in the past to dismiss cases,” Hopwood said.

Political analyst Ndumba Kamwanyah said it would be a tall order for Itula and the opposition to prove their case successfully.

He emphasised they needed concrete evidence to prove their case.

“However, that does not mean that the election was fair. It was free but not fair due to a lot of technical errors. I don't think the election was intentionally rigged, but yes the technical glitches are and should be a big concern,” he said.

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