PRESS RELEASE



This is a preliminary report.

In terms of Section 4(1) of the Electoral Act 1992 (Act 24 of 1992), as amended, the Electoral Commission of Namibia (ECN) is the administrative body that is exclusively mandated to direct, supervise and control, but ONLY in a substantively and procedurally fair and impartial manner, any elections held in Namibia under the Act. While in terms of the Article 18 of the Namibian Constitution, administrative bodies and administrative officials are required to act ONLY fairly and reasonably and to comply with the substantive and procedural principles of common law and statutory legislation.

Based on the cited legal and constitutional provisions, NSHR strongly disputes herein and hereby any claims by ECN that it had directed, supervised and controlled the just-ended Presidential and National Assembly elections in a fair, impartial and or transparent manner, as required of it under both the said Act and Constitution. In an attempt to substantiate its objections against ECN conduct, NSHR wishes to advance the following incidents and or (mis)conducts:

1. Lack of ECN Fairness and Impartiality

NSHR questions the fairness and impartiality on the part of most of ECN commissioners as well as the current Directorate of Elections (DoE). Based on, inter alia, circumstantial evidence, the human rights organization has reasons to believe that most of ECN’s commissioners are members and or active supporters of the ruling Swapo Party. As such, they cannot be seen to be acting fairly and impartially.

NSHR bases its belief, firstly, upon the fact that the ruling Swapo Party has advocated and systematically implemented a discriminatory and, hence, unlawful policy of jobs-for-comrades[1], as cronyism is called in Namibia. In terms of such policy, ONLY Swapo Party loyalists must be employed in the strategic and essential departments of the State, such as ECN. Secondly, all those high-ranking Government officials, including heads of semi-state enterprises, who are suspected of being Rally for Democracy and Progress (RDP) “hibernators”, have either been forced to sign an oath of allegiance[2] to the ruling Swapo Party or they have been directly or constructively axed from their posts.

For example, on May 7 2008 through undated Media Release signed by ECN Chairperson Dr. Victor Tonchi, former DoE Philemon Kanime was summarily dismissed unlawfully.[3] Ostensibly, Tonchi was acting under enormous pressure from the ruling Swapo Party to ax Kanime. Dr. Tonchi is widely believed and seen to be a staunch Swapo Party loyalist. Moreover, Kanime’s axing occurred only after he allegedly allowed the registration of RDP as a political party, without first informing the president of the Swapo Party thereabout. RDP was formed on November 17 2007 to bring about a visionary socio-political and economic change in the country.
Dr. Tonchi’s aforesaid Media Release gave no reasons, whatsoever, for the constructive dismissal of Kanime, let alone citing the legal and or constitutional provisions, if any, upon which he (Tonchi) relied to ax Kanime.

Hence, Dr. Tonchi and other ECN commissioners lack the necessary fairness and impartiality as contemplated under the aforesaid Act and as required and Article 18 of the Constitution.

2. Unfair Appointment of ECN Officers

Since ECN commissioners lack fairness and impartiality, the recruitment and subsequent appointment by ECN of polling officers, presiding officers, returning officers and regional coordinators as well as all other support staffers could not have been conducted in a fair and impartial manner. Moreover, such recruitment was conducted, in most instances, through the offices of the equally highly partisan Swapo Party Regional Councilors, such as well-known Swapo Party activists Penda ya Ndakolo (Omuthiya Constituency), Joseph Mupetami (Okatyali Constituency), Sackey Nangula (Omuntele Constituency), Usko Nghaamwa (Ohangwena Constituency), Mandume Pohamba (Ondobe Constituency), Jhonny Hakaye (Okalongo Constituency), Sackey Kayone (Ogongo Constituency), Nehemiah Haufiku (Eenhana Constituency) and others. It is common cause that these Councilors have widely been accused of intimidation, hate speech and undue influences as well as other illegal acts under the Act.

Since the fruits from a poisonous tree are also poisonous, the polling officers, presiding officers and returning officers and others that have been appointed by partisan people are ipso facto also partisan. Appointing partisan officers shows that ECN has not only contravened the letter and spirit of Section 4(1) of the aforesaid Act, but also that of Article 18 of the Constitution.

3. Discriminatory Voter Registration Drive

ECN’s voter registration programs in the densely populated Ohangwena, Oshana, Oshikoto and Omusati regions were in most cases also systemically announced through local NBC’s Oshiwambo Radio by the aforementioned Regional Councilors to the chagrin of NSHR.[4] Such programs were deliberately and ambiguously announced together with the campaign rallies of the ruling Swapo Party, with the result that any ordinary person of average intelligence can only conclude that such voter registration programs and the Swapo Party elections rallies are materially one and the same. This state of affairs led to the disenfranchisement of non-Swapo Party supporters, who were made to believe that these ECN voter registration programs were, in fact, Swapo Party programs, exclusively intended for Swapo Party supporters.

As a matter of fact, during its Press Conference[5] held on March 26 2009, NSHR had produced ‘smoking gun’ evidence, in the form of color photographs, and exposed an ECN registration drive taking place at the private homes of Swapo Party activists in the impoverished Ombili neighborhood of Windhoek’s Katutura suburb.

Hence, the ECN voter registration process was also not conducted in a fair, let alone in an impartial and transparent, manner as contemplated under Section 4(1) of the Electoral Act 1992 (Act of 1992), as amended. Moreover, it is common cause that violence, incitement to violence, other undue influences as well as other forms of hate speech have been the order of the day at virtually all the election rallies held by the Swapo Party. Since January 2008 NSHR has recorded numerous election-related incidents of violence and intimidation as well as other acts intolerance and undue influences of which the ruling Swapo Party was the prime perpetrator.

4. Inaccurate Voters’ Register

Part IV of the Electoral Act 1992 (Act 24 of 1992), as amended, inter alia emphasizes the fact that, in any fair and transparent as well as credible elections, it is of utmost significance that there be compiled an accurate voters’ register. In terms of Section 27 of the Electoral Act 1992 (Act of 1992), as amended, the significance of a reliable voters’ register lies in the fact that such register must be devoid of fatal errors and gross inaccuracies and or discrepancies. This, however, has not been the case with regard to ECN’s final voters’ register for the 2009 Presidential and National Assembly Elections.

The inaccuracies and, hence, the unfairness on the part of ECN, lie in the fact that ECN had compiled different voters’ registers with different and or conflicting accounts about the number of eligible voters in the country.

For example, The Namibian[6] newspaper diligently published various ECN voters’ registers as they were announced on various occasions by senior ECN officials. These figures, most of which were released between November 9 and 30 2009 alone, are listed from the earliest to the latest as follows: 1.3 million voters; 1.16 million voters; 1.18 million voters; 822 344 voters; and, 1.16 million voters!

However, in terms of Section 26(4) of the Electoral Act 1992 (Act 24 of 1992), read in conjunction with Section 26(3) (a) of the said Act, the only lawful voters’ register is the one which ECN had published and gazetted on November 9 2009. Any and all other voters’ lists and or voters’ registers are of no force and or effect. In terms of Section 35 of the Act, read in conjunction with Sections 29 and 30 of the Act, no amendment to the final voters’ register is permitted after the closure of such register whereby the names and other particulars of persons are removed and or added due to change in residence.

However, during its Press Conferences held on November 19 and 24 2009, NSHR has exposed, in the public interest, the gross inaccuracies and discrepancies characterizing ECN’s voters’ registers.

5. More People Voted Than Registered

As NSHR had through its Press Release[7] issued on November 27 2009 predicted that more people will have voted than they have, indeed, registered. On December 4 2009, The Namibian[8] newspaper published a series of constituencies where voting figures strongly suggested that more voters have voted than had registered. For example, in the Omuthiya Constituency of Oshikoto Region alone, 11 481 people had voted, although only 8 468 were actually registered to vote there. This represents a huge voter turnout of 135 percent. Similarly, several other constituencies, such as Onyaanya (135 percent), Ongwediva (133 percent), Ondobe (129 percent), Swakopmund (112 percent), Walvis Bay Urban (109.9 percent) and even Windhoek West (104 percent) and Windhoek Rural (100.7 percent), have also experienced stunningly high voter turnouts.

What comes to the mind of an ordinary person with an average intelligence would be to wonder as to what all those voters might have been doing in such rural villages and or places as Omuthiya, Onyaanya and Ondobe, such that they would be compelled to cast their tendered ballots there. There are no infrastructures and or public amenities, such as hospitals, trade fairs, sporting events which would attract such large numbers of voters to be present there on November 27-28 2009 with their voters’ cards ready.

Moreover, as contemplated under Sections 87(2) (c) and 87A (1) (c) and (d) of the Electoral Act 1992 (Act 24 of 1992), as amended, it is procedurally incorrect and totally illegal to count and recount tendered ballots together with so-called ordinary ballots in the constituencies where they were cast!

The only other possibility and the most likely scenario is that vote rigging, in the form of either ballot stuffing and or multiple voting by persons who in possession of more than one voter’s cards, might have occurred in those constituencies! After all, on several occasions, ECN had assured the general public that, regardless of whether or not a voter’s names are listed in the voters’ register, everyone will be allowed to vote, as long as they are in possession of valid voters’ cards.

During its Press Conferences held on November 19 and 24 2009, NSHR produced ‘smoking gun’ evidence that hundreds of voters had been issued with more than one voters’ cards even after the closure of the voters’ register.


6. Non-Posting of Votes at Polling Stations


Under Section 25 of the Electoral Amendment Act 2009, both the counting and recounting of votes ONLY take place at polling stations, under the supervision of presiding officers and in the presence of election agents as well as other accredited observers. In terms of Section 25(6) of the said Act, the presiding officer must announce “in the prescribed manner”, the result of all the vote counts, inform the returning officer thereabout and must post a copy of such results at all the polling stations.

However, in most cases, this key legal requirement has never been complied with by ECN. No such results have been posted at most polling stations. In a few cases where such results were, indeed, posted at polling stations, they have either been removed or withdrawn thereafter, while in many cases, such results have been replaced with different ones at the polling stations.

This is yet another blatant non-compliance with the law on the part of ECN.

7. Counting at Verification Centers


In terms of Section 25 of the Electoral Amendment Act 2009 (Act 7 of 2009) the counting and recounting of votes take place ONLY at the polling stations and NOT at the so-called verification centers.

Hence, NSHR is also gravely disturbed by the arbitrary and unlawful introduction of so-called verification centers at the constituency level where the counting and or recounting of ballots had occurred in the absence of party counting agents and other accredited election observers. NSHR deeply suspects that this is primarily where vote rigging, if any, might have occurred either through the erasure of ballots, which are marked with an easily erasable pencil, or through the substitution of the original ballot boxes with stuffed ones.

Through its public statements, ECN has ostensibly created a wrong impression deliberately that the Electoral Act 1992 (Act of 24 of 1992), as amended, makes provision for the establishment of verification centers, where, for example, ballots can be counted and or re-counted.

As contemplated under Section 26 of the Electoral Amendment Act 2009 (Act 7 of 2009), the functions of the returning officers, which exclude the re-count of ballots, are as follow:

· To examine whether the seals on the ballot boxes, voting machines and packets, are in order and to afford any counting agents an opportunity to do the same;

· To open all the ballot boxes and sealed packets relating to a particular polling station received from the presiding officer;

· To verify the correctness of the return furnished by the presiding officer concerned;
· To prepare a report on the result of the verification;

· To allow any counting agent or candidate to make copy of the verification report; and

· To cause the report to be delivered or transmitted to the DoE.


8. Use of Pencil to Vote


In addition to the poor qualify of the indelible ink, NSHR is also deeply concerned about the use of pencil in voting. In the opinion of the human rights organization, the use of a pencil makes it possible for vote rigging to take place. Simply put, NSHR does not understand the rationale behind and or the contradiction inherent in the use of an indelible ink, on the one hand, and the use of a delible pencil, on the other.


9. Secrecy of Voting

Under a democratic society as contemplated under paragraph 3 of the Preamble to the Constitution as well as Article 17 (1) of the Constitution, the secrecy of everyone’s vote is of cardinal significance in any democratic election. No election can be declared to have been free unless the inviolable secrecy of every voter has been maintained and guaranteed. However, entering the registration numbers of voters on the counterfoil of the ballot papers has the effect of nullifying the secrecy of the vote.

Moreover, in terms of Sections 81 and 100 of the Electoral Act 1992 (Act 24 of 1992), as amended, ECN officers must ensure the secrecy of voting at polling stations and thereafter and must not do anything that is likely to defeat such secrecy of the voting. However, accredited NSHR observers in the Khomas and Oshikoto Regions have reported having witnessed ECN officials entering the voter registration numbers of the voters on the counterfoils of the ballot papers.

At Ondangwa, accredited NSHR election observers had alerted especially the observers from SADC and the African Union as well as to members of the Namibian Police to this gross non-compliance with the Act by ECN officials. This state of affairs would be FATALLY illegal if, for example, it can be demonstrated that the ballots and their counterfoils bear identical serial numbers.

10. Exclusion of Accredited Election Observers

NSHR is also concerned about widespread allegations that accredited observers from non-governmental organizations as well as counting agents from certain political parties have been excluded from observing the voting process at polling stations. In NSHR’s case, its accredited observers continued to be excluded from observing the voting process in blatant defiance by ECN of the November 27 2009 High Court Order.


11. Abandonment of Polling Stations


NSHR is also disturbed by the abandonment on the part of ECN officers from the polling stations and or so-called verification centers. On December 1 2009 such absenteeism had prompted DoE Moses Ndjarakana to issue an ominous directive that all the presiding officers and returning officers must immediately return to their respective duty stations or else their failure to do so would be regarded as dereliction of duty.

12. Conclusion

In pursuance of the aforementioned incidents and or (mis)conducts, NSHR accuses ECN not only of gross incompetence but also of having acted unlawfully in blatant contravention of the laws and other inviolable principles governing the holding of free, fair, transparent and credible elections. Since the electoral process has largely been directed, supervised and controlled in a manner other than a fair and impartial and transparent one, it follows that the outcome of such direction, supervision and control could only be described as having NOT been achieved in a fair and impartial manner as provided for under Section 4(1) of the Electoral Act 1992 (Act 24 of 1992), as amended.

Moreover, the above-mentioned incidents of non-compliance by ECN with especially the provisions of Part V of the Electoral Act 1992 (Act 24 of 1992), as amended, as well as other key principles on free and fair elections show that the just-ended Presidential and National Assembly elections 2009 have NOT been conducted in accordance with the fairness and impartiality principles as requited under the law. This is in addition to other violative factors, such as intimidation, incitement to violence, violence and other acts as well as other undue influence.

The aforementioned commissions and or omissions by ECN are likely to affect the overall outcome of the just-ended electoral process. This state of affairs is compatible with the doctrine of the fruit of the poisonous tree. If a tree is poisonous so will its fruits be!

Under these circumstances, NSHR is unable and unwilling to declare the just-ended Presidential and National Assembly elections as having been directed, supervised and controlled in a free, fair, impartial, transparent and credible manner.

In case of additional comment, please call Steven Mvula or Phil ya Nangoloh at Tel: 061 236 183, 061 253 447 or 0811 406 888 (office hours) or Cell: +264 811 299 886 (Phil) or E-mail: nshr@nshr.org.na or visit: Namibia's National Human Rights Organisation