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Opposition case dismissed

The National Assembly election in late 2009 has survived the legal challenge through which nine opposition parties tried to force a fresh election or a recount of votes.
The opposition parties’ complaints about alleged irregularities that they claimed had marred the election were dismissed in the High Court in Windhoek yesterday.
While the Electoral Commission of Namibia managed to fend off the challenge to the election, the elections body and its director, Moses Ndjarakana, emerged from the case bruised and battered and with serious doubts cast on their ability to run Namibia’s elections, though.
In affidavits filed with the court during the case Ndjarakana made a false declaration under oath, Judge President Petrus Damaseb and Judge Collins Parker found.
Referring also to evasive answers that Ndjarakana gave on affidavit, the court commented that this does not inspire confidence in someone whose word and actions a court and the public should be able to trust.
It is hoped that the Prosecutor General and the authority that appointed Ndjarakana to his post will give due consideration to this matter, Judge President Damaseb, who read out the court’s joint judgement, stated.
The Judge President said: “That something must be done admits of no doubt. Although the present challenge did not meet the test for the invalidation of the NA election, it raises fundamental issues about electoral governance in this country and the need to run electoral affairs in a manner that avoids unnecessary suspicion fuelled by confusion created by those who run elections.”
The two judges ruled that the evidence before them did not prove any of the opposition parties’ complaints that the election was marred by irregularities that opened the way for large-scale rigging and ballot-box stuffing to take place.
The ECN and its officials were guilty of some lapses, mainly centred on confusion about the voters’ register used in the election, though, the court found.
The two judges found that the ECN has not satisfactorily explained why there was so much confusion about the voters’ register before the election. This confusion aroused suspicion among the parties which launched the election challenge.
Those responsible for such lapses must be held accountable, the court said.
Judge President Damaseb stated: “It will be unfortunate if the people responsible for these lapses are allowed to participate in the conduct of elections and to unnecessarily put the country through the same controversy and suspicion that had characterised the aftermath of the 2009 NA election. It will be a sad day indeed for this fledgeling democracy if, after this verdict, those who manage elections think they have been completely vindicated, and therefore to continue with business as usual.”
The nine parties – the Rally for Democracy and Progress, United Democratic Front, DTA, Congress of Democrats, All People’s Party, Nudo, Republican Party, Namibia Democratic Movement for Change and Democratic Party of Namibia – on January 4 last year filed an application with the High Court in which they challenged the conduct and outcome of the National Assembly election of November 27 and 28 2009.

The parties attacked the conduct of the election and the counting process that followed on a wide front. A major portion of their case was based on claims that unrealistically high voter turnout percentages that were detected in some constituencies prompted suspicions that rigging and ballot box stuffing had taken place.
The parties calculated that turnout using a voters’ register containing a total of 822 344 voters, which the parties claimed the ECN provided to them only two days before the elections.
In an affidavit filed in response to the election challenge, Ndjarakana denied that the voters’ register used by the parties was provided by the ECN.
In an earlier affidavit, however, Ndjarakana explained that the voters’ roll in question had indeed come from the ECN.
In the second, later affidavit Ndjarakana stated that the voters’ register that was used in the election was the one published in the Government Gazette on November 9 2009. That voters’ roll, after corrections, contained the names of 1 181 835 voters. When that roll was used to calculate voter turnout in constituencies where the opposition parties claimed to have detected unrealistically high turnout of as much as more than 100 per cent of registered voters, the turnout in fact fell to as low as 36 and 38 per cent in some constituencies.
As the two judges viewed it, the parties’ case was that the ECN decided before the election to manipulate the voters’ register to include the names of people who were not entitled to vote, all for the purpose of making ballot stuffing and tampering possible. This would have been “the grandest electoral fraud ever alleged” in Namibia, the court commented.
The high-water mark of the parties’ case was “that more people voted in the elections than were actually registered, without a single piece of eye-witness or physical evidence offered to support even one case of ballot-stuffing in favour of a particular contestant”, the court found on this score.
For the court to find support for the parties’ “very unspecific and generalised allegation of ballot-stuffing”, the judges stated, it would have to find that “an invisible hand was at work, with clock-work accuracy coordinating lapses in the electoral administration process – and using those lapses to great effect and accuracy – to illegally place (without anyone at all noticing – not even party agents: for there is not one confirmatory affidavit by anyone who had seen something of the kind) ballot papers in ballot boxes to the advantage of a contesting political party”.
If it had to find support for the parties’ claims, the court would also in effect have to say that the Namibian Police, which played a crucial part in guarding election material, “was part of the invisible hand perpetrating the implied grand-scale corruption that allegedly occurred”, the court added.
The facts that were accepted by the court however did not prove this or prove that the integrity of the election was destroyed through fraud, it was found.
The judges stated: “We remind ourselves and the applicants that this is a court of law: Courts work on proven facts and not on conjecture, innuendo and unsubstantiated conspiracy theories.”
Because of the conduct of the ECN and Ndjarakana in the election and with their defence of the case, the court decided not to order the losing parties to bear the ECN’s legal costs in the matter. The parties were however ordered to pay the costs of the second respondent, Swapo, which emerged from the election winning 54 of the 72 seats in the National Assembly. - The Namibian

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Election Watch is a project of the Institute for Public Policy Research in Windhoek, Namibia. Election Watch is funded by the European Union and the Canadian Fund for Local Initiatives.