Windhoek — If the Supreme Court nullifies the 2019 Presidential and National Assembly elections, it may cause untold chaos in the country.
This was one of the arguments of William Mokhare, the senior counsel representing the respondents, including the Electoral Commission of Namibia (ECN) in the unfolding election court challenge. Mokhare is representing the minister of urban and rural development, the attorney general, the Electoral Commission of Namibia (ECN) and its chairperson in a legal battle over the legality of using Electronic Voter Machines (EVMs) without a Voter Verifiable Paper Audit Trail (VVPAT) during last year's general election.
Mokhare argued that the nullification of the 2019 election results would also affect the legitimacy of the 2014 presidential election in which EVMs were also used without a VVPAT.
"The court is also entitled to make an order that the declaration of invalidity will operate prospectively and not retrospectively, otherwise it will cause untold chaos in the administration of justice and the state," said Mokhare. In addition, Mokhare said that a fresh re-run of the elections would have major financial implications. Independent presidential candidate Dr Panduleni Itula and four other candidates who contested the presidency last year, approached the Supreme Court on an urgent basis, asking the court to declare that the selective promulgation of parts of section 97 of the Act is unconstitutional; that the outcome of the 2019 presidential election is invalid; and an order directing the ECN to conduct a fresh election in compliance with the constitution and the law within a reasonable time to be prescribed by the court. During oral arguments, the applicants' senior counsel Jeremy Gauntlett argued that the minister of urban and rural development did not have the powers to decide that the part of the Electoral Act requiring a verifiable paper trial for electronic voting machines should not be implemented with the rest of the Act in 2014.
Thus, the selective promulgation was invalid. "Hence one sub-provision cannot be put into operation or applied without complying with the condition imposed by the subsequent sub-provisions. Parliament's permission to use EVMs depends on the conditions contained in and hence requires the pari passu promulgation of sub-sections (3) and (4)," explained Gauntlett. Gauntlett further argued that despite the importance attached to the paper trail by the ECN and legislature, the EVMs used during the 2019 presidential elections did not produce a paper trail. Hence the use of EVMs themselves was inconsistent with the Act, and accordingly also unconstitutional. The 2014 Electoral Act allows the use of electronic voting machines in elections, but specifically states it is subject to the existence of a VVPAT for each vote cast. "The 2019 presidential elections were not conducted in accordance with the principles and procedures as determined by the Act of Parliament. Nor was there any compliance with article 28(4) of the Constitution, which requires that the procedures to be followed for all matters necessary and incidental to ensure the free, fair and effective election of a President shall be determined by the Act of Parliament," argued Gauntlett. In the midst of it all, Chief Justice Peter Shivute noted that parliament ordained that EVMs may be used, subject to a paper trail for votes. The decision not to implement the part of the law on a paper trail effectively undid what parliament decided, Shivute noted. Ad-hoc judge of appeal Bess Nkabinde was in agreement with Justice Shivute stating that parliament speaks for the people, including the president signing the legislation into law. She queried whether it could be considered acceptable that someone then decides to implement only parts of the law. "It seems the separation of power has been breached," said Nkabinde.
However, Judge Sylvester Mainga said he was apprehensive to run to the conclusion that the minister was wrong when he decided not to bring the Electoral Act's requirement of a paper trail for EVMs into operation. Mokhare replied by stating that the court should give an order that would allow the minister the opportunity to rectify the defects in his determination rather than nullifying the election results, which would consequently call for a fresh election. In addition, the use of EVMs without a paper trail during elections has already been challenged in the High Court, which found that 'there was nothing unlawful in the bringing into operation of the Electoral Act with the exception of section 97(3)(4), and that the usage of EVMs without paper trail in election does not infringe the right to free, fair and credible election'. Mokhare argued the ECN cannot contravene a provision that has not yet been put into operation, as such provision has not yet become a law. Judgement was reserved in the matter on Friday at least until 6 February 2020.