These are some of the crucial issues likely to be weighed by the court when assessing the merits of the opposition election application:
Ballot boxing stuffing
If there are ballot papers in ballot boxes that are not from the original ballot paper books then this would be constitute ‘smoking gun’ evidence of vote rigging. Since there are no voter registration numbers in cast ballots, they might be difficult to spot. Differences in print quality or lack of the ‘secret mark’ on the back of the paper might be signs that extra ballots have been printed for the purpose of ballot stuffing. Other indications of ballot irregularities could include ballot paper books that have counterfoils with no voter registration numbers written on (although this could be a sign of incompetence or lack of training among electoral officials) or false voter registration numbers written on. Turnouts of over 100 percent in some constituencies are not in themselves evidence of vote rigging, since the tendered ballot system could potentially create such a situation without any laws being broken.
The ever-changing voters register
The various versions issued to the parties in the run up to the election caused a lot of confusion. The question is was this a deliberate attempt to make it difficult for parties and observers to track down vote rigging or was it plain incompetence on the part of the ECN? That voters register issued to the parties two days before the election contained the names of 822,344 voters. If this is correct, then the eventual turn out of some 810,000 votes is extremely, if not impossibly, high. However, the ECN maintains that the official voters’ roll was one published in the Government Gazette on November 9 2009. That register contained the names of 1,181,803 voters.
What is the voting age population?
What would be a realistic number of registered voters? This would depend on government population projections as to the number of people over 18 in 2009. According to National Planning Commission projections the voting age population could be around 1.3 million out of total population of 2.1 million. That would make a voters register of 822,000 look quite low and a voters register of 1.2 million look very high. It depends which figure the ECN present to the court as the real voters register.
Duplicates and dead people
The opposition parties claim there were 92,000 dead people on the version of the voters register last given to them just before the election and 58,000 duplicate names. If true this would demonstrate that the voters register was highly inaccurate. However, the Electoral Act appears to state that an inaccurate voters register alone is not enough to have an election set aside since ‘honest mistakes’ are would not invalidate the register. The ECN is likely to argue that the use of indelible and invisible inks prevented double voting anyway. However, a deliberately inflated voters register could have been used to allow ballot stuffing, since unrealistic turnouts might be difficult to spot if the voters register has been falsified. This would probably only come into play as a key factor if there is clear evidence of ballot box stuffing to link to it.
People not on the register
According to the opposition parties at least 19,000 people who weren’t on the voters register voted. Some people were inexplicably left off the register even though they had registered properly (MAG MP Jurie Viljoen being one of them). Under the Electoral Act people not on the register are allowed to vote as long as they have a valid voter’s registration card. However, their details are entered on a separate form before they are allowed to vote. Again this comes down to an inaccurate voters roll, but will that be enough evidence to derail the result? Perhaps only if it can be proved that some of the 19,000 did not have the right to vote.
Failure to post results
According to an amendment to the Electoral Act, results were to be posted at polling stations once the counting and announcing at a polling station had been completed. The opposition claim that in at least 41 constituencies the results were not posted as required by the law. Again, the question before the court will concern whether such an omission could have a material effect on the final result?
Use of ‘verification centres’
One of the reasons for the delay in announcing results was the apparent checking and re-checking of results at constituency centres and at the results centre in Windhoek. Such a drawn-out process inevitably raises suspicions. Also is such a verification process legal, particularly if it involves re-opening ballot boxes without the presence of party agents, observers and the police? According to Section 87 of the Electoral Act, a returning officer in a constituency is allowed to verify the correctness of returns sent through by presiding officers.
Mobile polling stations
There were more than 2,000 mobile polling stations as compared to nearly 1,000 fixed polling stations. There were fears, prior to the election, that if irregularities were to occur they would take place at mobile polling stations where there were few party agents or observers to check what was going on.
This system which allows Namibians to vote anywhere in the country rather than in their home constituency only appears to have caused a series of problems, particularly as the ECN does not announce the tendered ballots cast separately. This can give the appearance of turnouts in excess of 100 percent in some constituencies. Whether or not it was linked to any malpractice, the tendered vote system creates loopholes and confusion which could be used by those wishing to manipulate an election result.