Shimbulu reinstatement declared illegal
The ruling party's illegal actions at Oshakati have been laid bare in a legal opinion.
28 February 2020 | Politics
Greyling said in his legal opinion, seen by Namibian Sun, that this was not in accordance with the Local Authorities Act, and as such, is invalid.
On 16 December 2019, ruling party Oshakati councillors Onesmus Shilunga and Gabriel Kamwanka boycotted the council's election of political office-bearers in protest against a decision by Swapo's Oshakati East and West district executive committees to bring Shimbulu back.
This was after she had resigned last October to comply with Article 47 of the constitution, following her acceptance of a nomination on the Swapo list of MP candidates for November's National Assembly election.
According to Article 47, political party members must resign from the National Council, regional and local authority councils and public service upon accepting nomination for parliament.
Swapo's dismal poll performance, in which it lost 14 seats in the National Assembly compared to 2014, saw Shimbulu failing to make the cut for the new parliament that will be sworn in next month.
Following the furore regarding Shimbulu's subsequent re-emergence at the Oshakati town council, acting CEO Kornelius Kapolo turned to Greyling for advice.
Kapolo said Greyling is a legal officer contracted by the council and whenever there are issues he is not sure of, he turns to him for legal advice.
“These are just legal opinions and at the end of the day, it is up to the council to make the final decision. As the acting executive, I just have to implement what is within the law and you must also remember that our swearing-in process is underway,” Kapolo said. Shimbulu tendered her resignation as a councillor and member of the management committee in writing on 17 October 2019, Greyling said in his legal opinion.
He said the letter was not presented to Kapolo until late November, when it was requested by the Electoral Commission of Namibia (ECN).
Greyling said Kapolo informed Swapo regional coordinator Samuel Nelongo about her resignation, but for some reason urban and rural development minister Peya Mushelenga was not informed and therefore the vacancy was not gazetted.
A notice of the meeting of 16 December was handed to councillors after 13:00 on 13 December.
This invitation was also extended to Shimbulu, and according to Greyling, she should not have been notified nor allowed to be present, as she was not yet sworn-in when the meeting commenced.
“The council was supposed to have a meeting on 3 December, however, Swapo councillors did not attend this meeting due to other commitments. The agenda that was attached to the notice apparently contained the same information as the notice of the meeting that was supposed to take place on 3 December. It contained no mention of the swearing-in of Shimbulu,” Greyling said.
“Kapolo never received a nomination for Shimbulu as a councillor at any stage, notwithstanding verbal assurance by the district coordinator. However, he assumed that Shimbulu was nominated because her name appeared in the letter from Swapo pertaining to office-bearers.”
Greyling said the agenda was then amended at the time of the meeting on the advice of Magistrate Antonious Shapumba, who presided over the election.
“This amendment of the agenda at the meeting seems to be the cause of the discourse and it resulted in two councillors leaving the venue. They were apparently of the opinion that it would be unlawful or would lead to a nullity of the nomination and election,” Greyling said.
He added the magistrate had no authority to allow the amendment of the agenda, and a proper construction of a 72-hour notification period could have applied in this regard.
“Accordingly, the swearing-in of Shimbulu could and should not have taken place at the meeting and constitutes a nullity. Shimbulu actively participated in the meeting, as she nominated and seconded office-bearers for the certain positions and was elected herself as a member of the management committee,” he said.