Court scraps EVMs without trail

ECN gets March 21 deadline to rectify

06 February 2020 | Justice

The Supreme Court yesterday declared that the use of electronic voting machines (EVMs) without a paper trail during the November 2019 presidential election was unconstitutional, but said no evidence was placed before it to suggest that this affected the overall outcome of the election.

Although independent candidate Panduleni Itula and opposition parties backing his application failed to convince the court to nullify the election and order a re-run, they won the battle over EVM paper trail, with the court ordering the practice must cease by not later than March 21 this year.

The ruling was delivered by Chief Justice Peter Shivute.

“Whilst the transparency and credibility of the election were compromised by the lack of a verifiable paper trail, the question remains whether that adversely impacted on the electorate's fundamental right to vote,” the court ruled.

Though declaring the use of EVMs without a paper trail unconstitutional, the 21 March rectification deadline technically means that EVMs without a paper trail can still be used in upcoming by-elections at Otjiwarongo and Opuwo.

The Supreme Court also rejected former minister of urban and rural development Charles Namoloh's decision not to implement the paper trail as provided for by the Electoral Act of 2014 as unconstitutional.

This is despite the ECN having publicly declared in December 2015 that elections from 2017 would have the checks and balances enacted by parliament and that stakeholders would be informed when this would be implemented.

“The ECN chairperson's (Advocate Notemba Tjipeuja) denial of a statement attributed to her in a newspaper report to similar effect in February 2016 is, on the papers, untenable,” the ruling stated.

Respondents in the matter were ordered to pay two-thirds of applicants' legal costs in the matter.

'Too many questions, not enough answers'

Constitutional expert Professor Nico Horn said: “One would expect the court to nullify the results based on the fact that there is no paper trail and no way to verify the results.

“After the judgment, Subsection 3 and 4 of the Electoral Act is now part of the law. One would expect that the nullification of the November 2019 election is the logical next step for the court.

“However, this is not the route the Supreme Court took. The court was not willing to nullify the presidential election. Since it is too late to nullify the 2014 election, the issue of nullification is not the only remedy available.”

Horn said further that the court further found that the presidential election was free and fair, despite the absence of a paper trail.

“How do we know that if there is not a paper trail? The court then found that the presidential election was free and fair and it is not legally necessary to declare the election a nullity and have a rerun. It reminds me of a phrase from a Beatles song: Too many questions, not enough answers,” he added.

Lawyer Norman Tjombe questioned the conduct of the ECN and said it was untenable that they were allowed to remain commissioners.

“It would be sensible of them to render their resignations. The court should have maybe considered that they pay at least part of the legal fees in their personal capacity. For now it is a matter for parliament to reconsider the ECN commissioners,” said Tjombe.

On the other hand, he argued that it was a good judgment which emphasised the importance of free and fair elections and the ability to verify such results. He was however disappointed that the court did not set aside the 2019 election results.

“It seems that the overwhelming reason for this is because they seem to be blaming the applicants for not pointing out the incompetence and wrongfulness of the ECN and the minster's action earlier. For me that is a bit unfair,” he said.

Political analyst Ndumba Kamwanyah yesterday said he was not surprised by the outcome, which in his view was a victory for Namibia in the long run.

He said the Supreme Court judges factored in the reality that a rerun could have dire consequences for the county.

“In the immediate, the applicants may have lost but in the long run Namibia as a whole gained as the court ruled that in future elections a verifiable paper trail must be used. I think it is a fair and balanced judgment,” he said. The Supreme Court ordered that the respondents pay two-thirds of the applicants' legal costs.

“The court reasoned that although the applicants did not persuade the court to set aside the presidential election and to order a fresh election, they have vindicated an important constitutional principle of separation of powers. As such, they were entitled to costs. However, as they were only partially successful,” said Chief Justice Peter Shivute. Swapo Party executive director Austin Samupwa said the ruling was “perfect'.

He confirmed that the party was still busy with disciplinary action again Itula for his audacity to stand as independent candidate while remaining a party member.

Itula was 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 appeared as applicants.

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