Nation awaits EVM judgement with bated breath

20 January 2020 | Justice

Namibians must wait until February 6 to hear whether the Supreme Court will uphold the outcome of the November 27 general election or order a re-run of the vote if the use of electronic voting machines (EVMs) in that election is found to have lacked credibility.

During the landmark hearing in front of a five-judge bench, Advocate Jeremy Gauntlett, who argued on behalf of mainly independent candidate Panduleni Itula, said paper trail, which the EVMs used in that election lacked, serves as an indispensable check and balance in any election.

Itula brought to the Supreme Court a challenge against the use of the EVMs in the 2019 presidential elections. Official results show he came second in that election, against declared winner President Hage Geingob.

According to him, the Electoral Commission of Namibia (ECN) has failed to satisfactorily dispel concerns over the security of EVMs after the unauthorised “farming-out” of EVMs in 2017.

Chief Justice Peter Shivute on Friday said the Supreme Court would deliver its judgement on or before 6 February 2020.

Itula dragged ECN to court and demanded a rerun of elections within 30 days as the main relief.

Through his legal team, the dentist who is lately described as a 'circumstantial politician' has called on the Supreme Court to declare invalid and unconstitutional the 2014 determination by the then minister of rural and urban development, Charles Namoloh, in which the Electoral Act 5 of 2014, with the exception of subsection 97(3)(4) which prescribes the use of a verifiable paper trail for every vote cast by a voter, and any vote cast is verified by a count of the paper trail.

According to Itula, the ministerial determination to set aside the provision for a paper trail is inconsistent with various provisions of the Namibian Constitution, and should be set aside.

Itula was represented by South African Senior Counsel Advocate Gauntlett, who is instructed by AngulaCo. Incorporated, while the respondents were represented by Senior Counsel Advocate William Mokhare.

On Friday, Gauntlett explained that this challenge is based on the Namibian Constitution, the principle of democracy, the doctrine of separation of powers and related constitutional principles and provisions.

Addressing the matter of jurisdiction, he pointed out that their application is specifically authorised by section 172 of the Electoral Act of 2014.

Section 172 stipulates that “any challenge relating to the return or outcome of the election” is to be determined by the Supreme Court as a court of first and final instance.

“A fundamental constitutional issue underlies this application,” said Gauntlett.

Gauntlett also pointed out that the minister had no powers to 'shelve' the provisions for a paper trail which is vital to safeguard the integrity of elections.

He also pointed out that the ECN is not constitutionally or statutorily authorised to select the election method stipulated in the Act when there is no legal or regulatory infrastructure providing the checks and balances intended by parliament.

“Yet the minister concedes that the ECN adopted alternative 'checks and balances' of its own. This is dispositive. The ECN made law. It usurped parliament's role,” he said.

No jurisdiction

Mokhare argued that the applicants failed to explain how the Supreme Court has the jurisdiction to hear the matter, and urged the court to dismiss this matter on that basis.

According to him the wording in Section 172 is unambiguous and has to be given its literal, grammatical meaning.

He also said the applicants had failed both in their founding papers and in their heads of argument to demonstrate that the relief they seek against the minister rural development falls under presidential electoral challenge in Section 172.

“The applicants dismiss the respondents' jurisdictional objection and mischaracterise the objection as the respondents attempt to avoid judicial scrutiny. This is far from the truth. Judicial scrutiny with regard to a challenge to presidential election is statutorily provided for in section 172. The jurisdiction of this court to hear and adjudicate matters as court of first instance is also provided for in Article 79(2) of the constitution. The applicants have failed both in their

Mokhare also argued that Itula's demands “inconvenienced” everybody including the court and he has failed to explain why this application was not launched at all for five years, and only launched on extreme urgent basis after the announcement of the 2019 presidential and National Assembly elections.

According to Mokhare, the applicants have failed to make out a case for any of the relief they seek therefore the court should dismiss with costs which include one instructing and three instructed counsel.

“The applicants have known about this determination since 2014 and participated in the 2014 presidential and National Assembly elections where the same EVMs used in the 2019 elections were used in the 2014 elections without a paper trail and in terms of the Electoral Act in its current operation. None of the key applicants, including Itula who was and still is a member of Swapo, found the use of voting with EVMs with no paper trail as unlawful,” he said.

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