By Phil ya Nangoloh*


Through a Press Release published on October 7 2009 addressed to all media institutions, the Electoral Commission of Namibia (ECN) had announced that “the tender for the Printing of Electoral Ballot Papers has been awarded” to the Swapo Party business outfit Namprint. However undesirable this is, it was to be expected that ECN would award the tender to Namprint!

For those who might not know, Namprint is the same outfit which has, in my eyes, earned itself notoriety for printing the venomous and defamatory Swapo Party mouthpiece, Namibia Today! The ruling Swapo Party, which is one the 13 political parties contesting the election, owns Namprint. The ECN statement went further and explained that:

“The ECN awarded the tender for the printing of ballot papers for the November 2009 Presidential and National Assembly Elections to Namprint on the basis of the fact that the Company met all specifications and was also very favorable in terms of costs and value for money. The ECN wishes to thank all companies that showed interest in carrying out the work and wish them all the best in the future”.

What ECN has deliberately failed to point out is the fact that it had always awarded Namprint the contract to print the ballot papers apparently because Namprint had always met all specifications and had “been very favorable in terms of costs and value for money”.

Consequently and not surprisingly, most of the major Opposition parties contesting the November 27-28 2009 poll have last week threatened to withdraw from participating in the said poll, unless ECN reverses its decision to allow Namprint to print the ballot papers. NSHR advises these clearly aggrieved contesting parties not to withdraw but rather to take the route of judicial measures, should ECN fail to reverse its unwise and unfair decision.

The aggrieved Opposition parties should have no other option than to resort to the constitutional and legal procedure as provided for under Article 18 of the Namibian Constitution. These parties should launch a Court interdict even if doing so could “interrupt” the so-called democratic process. Moreover, the electoral process of this nature is ab initio liable to be “interrupted”, precisely because it is seen to be not fair and or impartial.

The present contract between ECN and Namprint constitutes, for all practical and legal purposes, an unconscionable agreement and, hence, it is null and void from the beginning.

In the meantime, several of this country’s leading opinion makers and one newspaper have reacted rather negatively to the threat by Opposition parties to withdraw from the “democratic” electoral process and, to a lesser extent, also to ECN’s decision to sign a contract with one of the contesting parties’ business arm to print the ballot papers.

I will briefly deal hereunder with what each one of the aforementioned opinion makers has been reported as saying about the threat by the aggrieved Opposition parties to withdraw from this manifestly unfair and partial electoral process.

Firstly, the publicly-funded but strongly pro-Swapo Party and biased New Era newspaper had last Friday October 9 2009 vehemently accused the Opposition parties of resorting to “propaganda and dirty tricks” in order to “undermine the legitimacy of the outcome of the elections in November and thereby render the results unacceptable”.

Secondly, former Director of Elections (DoE) Professor Gerhard Tötemeyer, one of the aforesaid opinion makers, is reported to have inter alia opined that the threatened Opposition withdrawal would harm the “democratic process”. Unlike Professor Tötemeyer, I do not, in principle, see any thing untoward or even undemocratic, whatsoever, in a provoked decision by the Opposition parties to withdraw from an undemocratic process. However, I would rather strongly advise the aggrieved contesting parties to seek redress in a competent court of law, even if doing so would be seen as “interrupting” the “democratic” electoral process. In so far as the Namprint incident is concerned, this electoral process is unlawful and unconstitutional.

Thirdly, I totally disagree with the rather apologetic and specious argument by both UNAM politics lecturer, Phanuel Kaapama and New Era Editor Rajah Munamava. The duo had in unison claimed that some of the Opposition parties had in the past always participated in elections in which Namprint had printed the ballot papers but did not allegedly complain. Furthermore, Kaapama and Munamava challenged the aggrieved Opposition parties to produce proof that printing of ballot papers by Namprint had in any way jeopardized the process of free and fair elections in the country.

The fact is, even if awarding Namprint the contract to print ballot papers had not jeopardized the previous electoral processes, it does not mean that this state of affairs could not jeopardize free and fair elections now. If certain or even all those contesting Opposition parties had hitherto tolerated this unfair state of affairs before, it should not be construed as precluding them or any other aggrieved stakeholder from resorting to judicial measures. As long as the legal and constitutional requirements imposed upon ECN to act in a fair and an impartial manner hold, any persons thus aggrieved by this unfair ECN conduct have the right to take the judicial route and challenge ECN in a competent Court of law.

Nevertheless, I fully agree with politics lecturer Kaapama who was quoted as saying that, “awarding the tender to Namprint could raise moral questions, as a contesting party owns the company”. However, I will go much further than Kaapama by saying that awarding Namprint to print the ballot papers raises rather very serious legal and constitutional questions. Moreover, ECN should have foreseen this problem and voided it.

Hence, like lecturer Kaapama, I hold that the Namprint incident has the potential of leading to a costly dilemma for ECN: an ensuing breach of contract legal battle with Namprint, should ECN terminate the contract unilaterally or a possible launch of a Court interdict by one or several of the Opposition parties thus aggrieved by the Namprint incident. But then, of course, this is a problem of ECN’s own making and, as such, ECN must be made to have a taste of its own medicine!

Fourthly, I also fully share Professor Bill Lindeke’s view. Lindeke is quoted as saying that ECN “should ideally keep contesting parties at arm’s length” and, further, that the consequences which might follow should have been anticipated by ECN but no measures have been taken to avoid it.

What does the law say about the duties and functions as well as about both the functional and operational independence of ECN? In terms of the law, ECN is not least required to be and remain competent, impartial and independent than the Judiciary! Section 4(1) of the Electoral Act 1992 (Act 24 of 1992), as amended, on the duties and functions of ECN stipulates that:

“Subject to the provisions of this Act, the Namibian Constitution or any other law, [ECN] shall be the exclusive authority to direct, supervise and control in a fair and impartial manner any elections under this Act.”

While Article 18 of the said Constitution, on administrative justice, stipulates that:

“Administrative bodies [compare with ECN and or its Chairperson Victor Tonchi] and administrative officials [compare with DoE Moses Ndjarakana] shall act fairly and reasonably and comply with the requirements imposed upon such bodies and officials by common law and any relevant legislation, and persons aggrieved by the exercise of such acts and decisions shall have the right to seek redress before a competent Court or Tribunal”.

Hence, ECN’s direction, supervision and control of the electoral process must, at the very minimum, not only be fair and impartial, but must also be perceived to be fair and impartial. In other words, as the referee in this electoral contest, ECN is expected not only to be impartial and fair but also to act accordingly and to be seen or perceived to be acting accordingly. ECN can hardly be a judge in its own cause. Moreover, public policy requires ECN not to have or to be seen to have any special interest connections with one of the parties to the electoral contest. The rationale behind this is to void the appearance of being biased and partial towards one of the contestants. Hence, ECN has the duty to remove all and any justifiable doubts about its duty to act fairly and impartially.

Furthermore, the Constitutional doctrine of administrative justice is based on two foundations: (1) the fact that administrative authorities must act fairly, reasonably and impartially and must comply with the legal requirements imposed upon them by the law; and (2) the availability of effective mechanisms for redress for persons aggrieved by non-compliance.

One of the key features of the Constitution is the recognition of the inherent dignity and the equality before for everyone the law as wells the principle of non-discrimination for all persons. The other key constitutional feature is the duty of all administrative, legislative and judicial organs and agencies of the State to respect, protect and fulfill the fundamental human rights and freedoms of everyone. These features are expressly enshrined in Paragraph 5(5) of the Preamble to, and in Articles 1(2), 5, 12(1) (a), 10 and 18 of, the said Constitution.

Broadly speaking, the above constitutional provisions mean that citizens should only be treated fairly and equally and in accordance with the rules of natural justice; that persons’ rights should not be taken away arbitrarily and or ultra vires and, further, that the rule of law should be observed at all times by every administrative officer and every administrative body. The diktats of natural justice include the doctrine of due process of law and the right of everyone not to be condemned until such a person has been accorded a fair hearing. The same doctrine also strictly prohibits persons to be judges in their own cause.

It must also be submitted that a public body and or public officer has no power or function, whatsoever, to make any policy decisions unless that power is rooted in the law. Section 4(1) of the Electoral Act 1992 (Act 24 of 1992), as amended, imposes the obligation upon ECN to act ONLY fairly and impartially, and not otherwise. As such, ECN cannot exercise any discretion to award a contract to, among others, Namprint unless it is empowered to do so by the law, let alone when Namprint is owned by a contesting party.

In addition, the Constitution enshrines the right to just administrative action. Taken against the provisions of Article 18, the Namprint incident is not just, reasonable or lawful. Nor is it procedurally impartial and nor will such action be seen as such. At the core of administrative doctrine is the fact that, in all and any of their decision-making, administrative bodies and officials have the obligation to effectively safeguard the right of all persons to justice. Again, the core values here are lawfulness, fairness and rationality and impartiality.

Moreover, the Namprint incident would only consolidate even further a wrong impression in the eyes of the general public, that, like Namprint, ECN and the Namibian Government belong to the Swapo Party. Accordingly and logically, the ballot papers that Namprint prints also belong to the Swapo Party. Hence, uninformed members of the general public might use such ballot papers to vote ONLY for the Swapo Party. The principle of natural fairness would dictate that one cannot use someone’s things to benefit that someone’s “enemies”!

The above state of affairs, combined with the controversial summary dismissal earlier last year of Phillemon Kanime as DoE for being perceived as an RDP supporter and the subsequent appointment of DoE Moses Ndjarakana in Kanime’s place, could cumulatively affect the outcome of the November 2009 poll.

The doctrine of ultra vires, which, as one honorable judge of the High Court had said, encompasses substantive and procedural ultra vires, “has found expression in Article 18 of the Namibian Constitution”, whose requirements embrace and widen common law requirements of administrative justice.

As provided for under Article 25(2) of the Constitution, persons aggrieved by ECN’s perceived lack of fairness and impartiality, have the right to seek redress in a competent Court in order to have their right to administrative justice restored and enforced. The object of the doctrine of ultra vires, the honorable judge argues, is to control governmental action (or inaction) within the meaning of Article 18 of the Constitution. The Article 18 requirements, he further says, are the minimum Constitutional requirements that a Court must apply when deciding whether or not an administrative body [enter ECN and or its Chairperson Tonchi] or administrative official [enter DoE Ndjarakana] has acted ultra vires, meaning whether there has been a failure of administrative justice within the meaning of Article 18 of the Constitution.[1]

Similarly, a senior judicial authority in this country had ruled that Article 18 of the Constitution requires administrative bodies and officials to act fairly and reasonably and, further, that from its nature as a fundamental human right, Article 18 has to be “interpreted broadly, liberally and purposively to give to the article a construction which is most beneficial to the widest possible amplitude”.[2]

Thus, administrative bodies and officials must therefore be vigilant and ensure that they remain free from real or perceived unfairness and lack of impartiality or prejudice of all colors. Hence, ECN must be extremely sensitive to the basic requirement that justice must not only be done, but it must also be seen to be done in respect of everyone.

Being charged with the exclusive authority to direct, supervise and control the electoral process, ECN has the duty to ONLY act fairly and impartially towards all the contesting political parties and to prevent all and any administrative injustices from occurring throughout the electoral process. Hence, ECN has but only one administrative option: agreeing to resolve the Namprint dispute amicably or else compelling the aggrieved Opposition parties to revert to a competent court for judicial action.

Let me emphatically point out here that we, at NSHR, have no qualm per se with a party-owned business outfit winning a tender to print the ballot papers. Rather, as a human rights monitoring and advocacy organization and as a stakeholder in helping ECN to ensure that the electoral process is free, fair, transparent and credible, we are totally opposed to, and are gravely concerned by the inherent unfairness and impropriety in, ECN’s ill-advised decision to award Namprint to print the ballot papers. Being owned by one of the parties contesting the election ipso facto automatically disqualifies Namprint! Otherwise this state of affairs only gives the Swapo Party the moral and political mileage as well as an unfair advantage over all and any other contesting parties.

Moreover, we at NSHR are also deeply disturbed at the impression being created by ECN that, of all the printing companies in this country, ONLY Namprint is capable of printing the ballot papers to ECN’s satisfaction. However, awarding Namprint the printing contract was, of course, to be expected because most of the ECN commissioners are either members of the Swapo Party, favorites thereof or they are perceived as such. This includes not least the current DoE. We challenge them to publicly deny this allegation!

The above scheme of things is in addition to the fact that the Swapo Party is unscrupulously abusing State facilities, such as motor vehicles, aircraft and finance as well as other critical resources to propel its electoral campaigns.

Sight must also not be lost of the systematic campaign of intimidation, violence and incitement to violence (and ECN has yet to utter a single word against these) as well as the manifestly unfair media coverage the Swapo Party receives on the State-owned local NBC Radio and TV and in the editorial and opinion pages of the equally State-owned New Era newspaper. These factors would cumulatively have a negative effect on the freeness, fairness, transparency and credibility of the electoral process. Hence, ECN should rather rescind the Namprint contract.


*Phil ya Nangoloh is NSHR’s Executive Director. Since 2007, NSHR has been systematically monitoring the electoral process with the view to document any legally actionable instances of electoral fraud, unfairness and un-freeness. Ya Nangoloh can be reached at nshr@iafrica.com.na or Cell: +264 811 299 886 or visit: Namibia's National Human Rights Organisation
Written at Windhoek on October 12
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[1] Haidongo Shikwetepo vs. Khomas Regional Council and Others December 24 2008
[2]Government of the Republic of Namibia v Cultura 2000, 1993 NR 328 (SC).340 B-D