Itula between a rock and a hard place
26 November 2019 | Justice
The tribunal ruled it has no jurisdiction to adjudicate on matters that involve reviewing the Electoral Commission of Namibia (ECN), while also saying Itula's application lacked urgency.
Constitutional expert Nico Horn said an urgent application to the High Court seems like the most appropriate alternative, but he is not sure it will entertain such an application.
“So I am not sure he was dealt with fairly in that sense. The other issue of course is the matter of jurisdiction. Dr Itula has a right to appeal, but my question is if it is going to help at all; then I do not think there is enough time for him to go to the court of appeal, which in this case is the electoral court, which is the same as the High Court,” Horn said.
“There is not enough time for them to make a judgement before Wednesday, unless he goes for an urgent application, and even if it is a valid position to take, it is not listed as one of the remedies in the Electoral Act. So he is in a very difficult position, it seems to me.”
Political commentator Ndumba Kamwanyah questioned the wisdom of launching a court case ahead of the election, adding it could influence potential voters to vote against Itula for going to court for a case that has no merit.
Kamwanyah believes Itula should have instead waited for the election results and then take the matter to court, adding the court case has diverted his campaign efforts.
“Yes, the concern, suspicion and mistrust about the machines I understand, but I think the court wanted to be careful not disrupt the country, because had it ruled in his favour, this would have resulted in the postponement of the elections. But also I think he did not have a strong case,” said Kamwanyah.
Itula's lawyer Henry Shimutwikeni said he would wait for an instruction from his client.
“We are still considering,” he said.
ECN chairperson Notemba Tjipeuja told the media that the EVMs are standalone machines and not computers that can be manipulated or influenced, as alleged.
She added they are aware of the concerns expressed by Namibians about the integrity of the voting process without a paper trail.
“So far there has been no court challenge against the result from the EVMs and that is very important for us. We have indicated that the specific method that is being used in India is not conducive or responsive to our needs. It has a lot of irretrievable areas,” she said.