News and Information

Opposition takes ECN to court over poll records
December 14, 2004

HIGH Court Judge Elton Hoff yesterday gave the Electoral Commission of Namibia until tomorrow to prepare itself for an urgent court application in which two political parties are asking for access to documents related to last month's Presidential and National Assembly elections.

The urgent application may yet be the first chapter in a possible court contest in which political parties claiming that the elections were spoiled by substantial irregularities might decide to challenge the outcome in the High Court.

For now, though, the Congress of Democrats, the Republican Party of Namibia, and the parties' respective leaders, Ben Ulenga and Henk Mudge, have asked the High Court to order the Electoral Commission (ECN) to provide a range of documents to them.

They say that they need these to help them assess what steps, if any, they should take over last month's elections and the claims that various irregularities were detected in the election process.

The parties argue that in terms of the Electoral Act, the Electoral Commission has to make the documents available to them.

So far, however - despite receiving lawyers' letters on behalf of the two parties to ask for the documents to be made available - the Commission has refused to give them access to the information.

Yesterday the indication from the Commission's lawyer, Ray Goba, was that it would also oppose the parties' request for a court order that would compel the ECN to disclose the documents.

After senior counsel Theo Frank pointed out to Judge Hoff that the ECN had been notified of the urgent application and served the necessary court documents around midday on Thursday last week, Goba told the Judge that the papers were only delivered to his house by about 23h00 on Thursday.

He asked for a postponement to give him time to take instructions from his clients and to prepare their case, and was given breathing space until tomorrow morning, when the matter is scheduled to return to court.

What constitutes a breather for the ECN at the same time puts the squeeze on the CoD and RP, though.

By tomorrow, the parties will have only five more days - until next week Monday - to prepare and file a petition to the High Court to challenge the election results, should that still be an option that they want to pursue after they had been able to wade through the information that they want the ECN to make available.

Documents to which the two parties want access, include:

* the election returns compiled by the presiding officers at each of the 1 168 polling stations that were used in the November 15 and 16 elections to show how the presiding officers accounted for all the ballot papers that were issued to them;

* reports in which returning officers for each of Namibia's 107 constituencies were supposed to verify the reports of presiding officers that worked under them;

* returning officers' reports to the Director of Elections, in which they had to give an account of how many ballots had been counted in their constituency, of how many had been rejected, and also of the ballot paper accounts that had been received from polling stations;

* returning officers' announcements to the Director of the results, irrespective of discrepancies, as counted in the officer's constituency; and

* lists containing serial numbers of ballot papers used in each and every polling station.

According to CoD Vice President Nora Schimming-Chase, who made an affidavit on which yesterday's urgent application was founded, the last-mentioned lists, as well as lists containing the numbers of ballot boxes that were to be used at each polling station, were supposed to have been provided to political parties before the election, in terms of the Electoral Act.

This never happened, though, she claimed.

She also stated that in terms of the Act returning officers had to announce the results from their constituencies at the point of counting.

This did not happen either at certain stations.

The explanation was that the results first had to go to the ECN.

In the process, Namibians had to wait for an unprecedented five days after the elections before the final results were announced.

The two parties and their leaders have received information about "certain alleged irregularities", according to Schimming-Chase.

These included claims that the ink used to mark voters' thumbs washed off quite easily, allowing people to vote more than once if they were so inclined; claims that "a substantial number" of people were registered more than once or in more than one constituency on the voters' roll; reports that ballot papers - all marked for opposition parties - were found dumped and partly burned at a spot near Okahandja; and claims that some ballot boxes in which ballot papers that had already been counted had to be stored, had not been sealed as required.

Schimming-Chase also claimed that when batches supposed to contain 100 ballot papers marked for Swapo were inspected, it was discovered that these contained only 90 Swapo-marked ballots.

At a later inspection, she claimed, a spot check on such a batch of 100 supposed Swapo ballots found 15 ballot papers that had been marked for opposition papers in the same batch.

She further claimed that "at various points" - which she did not name - Swapo polling or counting agents were allowed access to polling stations, whereas agents from other parties were barred, and that in "certain remote areas of the north" counting of ballot papers was done by people wearing Swapo colours, with opposition parties' counting agents not allowed to observe the process.

Should the CoD and RP succeed in their bid to get access to the documents tomorrow, they will not only face a race against time to file an election petition within the prescribed 30-day period after the election results had been announced.

They will also have to prove that there had been irregularities of such a nature that they affected the results of a disputed election - and that is not easy to prove, as an eventually doomed election petition filed by the DTA after the 1994 national elections has already shown.


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