News and Information

Opposition parties ask for election to be nullified
December 22, 2004

DEMOCRACY in Namibia may be facing a defining moment after the Congress of Democrats and the Republican Party yesterday filed a case with the High Court to ask for last month's National Assembly election to be nullified.

Lawyer Neels Verwey, who is representing the two opposition parties, filed an application at the High Court shortly after 15h00 to ask for the National Assembly election on November 15 and 16 to be set aside.

The two parties also placed a request for an alternative order before the High Court.

That is an order nullifying the announcement of the National Assembly election results on November 21, and directing a complete recount of the votes.

The case that was filed against the Electoral Commission of Namibia (ECN) and seven other political parties yesterday is not being pursued as an urgent matter, and will as a result be heard only some time early next year.

The CoD and RP notified the ECN and Swapo, the DTA, Monitor Action Group, Nudo, the UDF, Namibia Democratic Movement for Change and Swanu that if they do not oppose the application the High Court would be asked on February 7 to grant the order that the two parties are asking for.

If an order declaring the election null and void is in fact issued by the court then or at a later date, democracy in Namibia may face one of its biggest challenges yet.

An unprecedented rerun of the poll would then be on the cards while Government and Parliament would face a power vacuum, since there would be no validly elected National Assembly to take the place of the currently serving NA members once their term expires in March next year.

It is expected that the ECN will oppose the case.

However, when contacted later yesterday afternoon, the Chairperson of the ECN, Victor Tonchi, said the ECN had not yet been able to take a decision about the application.

A bid to nullify an election was not something that could be taken lightly, as it could put the entire nation at stake, he commented.


The two parties are basing their application on a claim that in documentation on the election that the High Court ordered the ECN on Thursday last week to provide to the parties, they have discovered so many examples of breaches of the Electoral Act that in effect no election had in fact taken place.

"In fact, with so many irregularities that go to the root of a fair and transparent process (...) no election in terms of the Act or Constitution took place but a muddled and botched-up attempt that cannot pass muster in any democratic country," RP Secretary-General Carola Engelbrecht states in an affidavit setting out the grounds on which the two parties are basing their case.

Elsewhere in her affidavit, she claims that "the provisions of the Act were as a rule rather disregarded than honoured".

She added:"In fact, so widespread was the disregard for the provisions of the Act that it is submitted that no election as envisaged in the Act took place."

One of the claims that Engelbrecht makes is that the high voter turnout of more than 84 per cent that the ECN reported after a longer than usual counting process, was in fact not true.

Ballot boxes had been stuffed with ballots that were in truth not marked by people who actually legally voted, she claimed, based on a calculation on the length of time it would have taken for each voter to cast his or her ballot and the time that polling stations were open over the two days of voting.

It was a physical impossibility for so many people to have been able to vote in that time, she claims, adding:"The inference is inescapable that there was 'stuffing' of ballot boxes by unscrupulous persons and (...) this was not an isolated case but was systemic throughout the country."

In addition, the fact that ballot papers did not have serial numbers - contrary to a requirement for that in the Electoral Act, according to Engelbrecht - meant that "unscrupulous persons" could also have replaced validly cast ballot papers with other ballot papers and that it would not be possible to detect such an irregularity as long as the number of ballot papers removed equalled the number that they were replaced with.

Engelbrecht claimed that the ECN election documents to which the RP and CoD won access through last week's court ruling proved not only an array of failures to comply with the Electoral Act, but also various discrepancies between voting figures and results as they were sent through to the ECN from various constituencies, and as the results were announced later by the ECN.


Among the claimed irregularities were failures by election officials that presided at some polling stations to sign for the receipt of ballot papers - something which, combined with flawed returns that the officials later completed, meant that checks could not be done to determine which ballot papers had in fact been issued, Engelbrecht explains.

Unsigned receipts for ballot papers, together with ballot books that could not be allocated to regions of Namibia because of documentation having been found to be incomplete, represent some 60 100 ballots, according to Engelbrecht.

"Material on the face thereof issued, but not signed for, in the said documentation represents ballots to the tune of approximately 105 000," she added.

While dealing more closely with alleged irregularities detected on documents tied to specific constituencies, she related that from the number of tendered votes that were registered at one isolated polling station in the Omusati Region, one could only infer that double voting or ballot box stuffing had taken place there.

Also in the Omusati Region, in the Okalongo constituency, people were allowed to vote without their voters' numbers being recorded - meaning that it would not be possible to ensure from documentary records that people had not been allowed to vote more than once.

Engelbrecht concluded with a statement that "the flagrant disregard of the Act by the ECN is of such a nature that it cannot be said that an election as envisaged in the Act took place at all".

She added that in the alternative, if an election was considered to have taken place, the widespread nature of irregularities was such that the results announced on November 21 could not be accepted as correct.


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