The Marathon Election case

**PeterTosh** · 3rd February 2011, 02:57 AM

Whenever I think about the protracted "election case" quotes such as "there will be no peace, until there is equal rights and justice" and "justice delayed is justice denied" inadvertently comes to mind.

OK, equal rights we kind of have but justice proved to be very elusive which means there will never be peace to those denied justice. Murderers roam the streets either on bail or acquittal while goat thieves get 30 years in jail. Multimillion dollar fraudsters gets slaps on the wrists (or even total protection) while handbag and cell phone grabbers get 10 years in jail.

I am quite certain that the courts have their own rules that govern their operation and dictate their procedures and, thus, pace. But in whichever way you look at it, whichever side you are supporting, if you are thinking frankly, something just doesn't feel right about this case. I mean the case was already argued and all sides have rested their cases what is that the learned judges are considering for such a length period?

But article 12(1)(b) of the Constitution provides that trials be conducted in a reasonable time. But the Constitution, which happen to be the supreme law of the land, aside it is also just a matter of common sense that sensitive cases with heavy public interest attached to them such as the election case should be solved within the shortest possible time to preserve public confidence in our court system ( a fact also acknowledged by Damaseb JP himself in his judgment when the opposition appealed his and Parker JA's decision to struck the case off the court's roll). Any protraction of such cases has serious ramifications. The courts are vested with judicial power (art 78 of the Constitution). Their primary objective is to oversee the administration of justice and to ensure that, since all people are "equal before the law" justice is guaranteed to all, irrespective of their social standing, allegiances or whatever criteria. This is a basic concept of the principle of the rule law which was supposed to be a defining characteristic of a free and independent Namibia. If the general public lose confidence in the courts, how will the courts then still maintain its mandate as the director of justice for the Namibian people? If the people are suspicious of our courts' judgments and procedures for whatever reasons, how can then the courts retain their legitimacy. The courts' legitimacy is extrinsically linked to public confidence. For instance, there are already talks in the streets that the only reason the verdict took so long to be pronounced is because the court found overwhelming evidence in favour of the opposition and working around the clock to find ways to rebut the evidence in favour of SWAPO and the ECN. One will definitely find it hard to counter such statements because, observed from a neutral point of view, they do not sound so far-fetched.

Moreover, the characters and motives of some fellows involved in this case aren't exactly helping matters either. Judge Damaseb, for instance, apart from his well known SWAPO connections or affiliation, has been kind of arrogant about the whole case. Instead of being diplomatic and treat all parties to the case indifferently, he was caught using some words, such as "these people", "we will not allow opposition political parties to dictate to us" which could be perceived as an unconscious display of bias. And don't forget the way this fellow was elevated to his position. In my opinion Damaseb JP has vested interest in the case and should have recused himself. I am of the opinion that if Damaseb JP and Parker JA heard the appeal alone they would still have found a way to dismiss the case. I think the presence of Langa AJA and Shivute CJ in the appeal case was very significant.

Please let the verdict be heard. The learned judges are constitutionally obliged to pass judgment within a reasonable time. The time that has passed is too long and fast approaching unreasonableness and thus unconstitutionality. If the learned judges cannot reach a decision within a reasonable time, it is not only unconstitutional but accusation of incompetence could also be levelled against them.

**Uncle Paul** · 3rd February 2011, 08:28 AM

The longer this case drags on, and the longer the verdict is withheld the more damage is done to the reputation, integrity and independence of the Court, and the wider judicial system. I think this is a make-or-break case in some ways for the judiciary and Namibia as a democracy: It will either confirm the worst suspicions that many Namibians harbour, which is that the judiciary is indeed politicall loyal to the ruling SWAPO Party - and particularly in this case - or it will show the depth, maturity, independence, integrity professionalism of the Court and deliver a verdict that is based on the Law, and serve justice. Let the verdict be heard!

**Uncle Paul** · 19th February 2011, 01:26 PM

Now that the High Court has given its verdict it can only be hope that lessons have been learned on all sides. Although the ruling SWAPO Party has won this particular election challenge it equally stands guilty of presiding over badly managed elections and not ensuring adequate legal and regulatory frameworks governing democratic elections. As Judge Damaseb said: "Although the present challenge did not meet the test for the invalidation of the NA (National Assembly) 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."

Opposition Loses

Toivo Ndjebela

Windhoek — Lack of supportive evidence to back claims of alleged irregularities and vote rigging in the 2009 general election yesterday proved too costly to nine opposition parties when they lost the case in which they sought nullification of the National Assembly election results.

Judge President Petrus Damaseb, in a lengthy judgement that was read for an exhausting five hours yesterday, dismissed the case.

He said the court was not presented with evidence that could have resulted in favour of the nine opposition parties that lodged the application in that court 11 months ago.

The judgment rapped the Rally for Democracy (RDP) and eight other parties on the knuckles, despite expectations for victory by the parties' rank and file. Damaseb spent the better part of yesterday reading out a judgment of more than 45 000 words, to all but show why it has taken him and Judge Collins Parker such a long time to deliver the verdict of the country's largest election challenge yet.

The parties approached the court in January 2010 seeking an order declaring the election for the National Assembly held on 27 and 28 November 2009 null and void and of no legal force and effect and that the said election be set aside.

This, the parties reasoned, is because the entire electoral process was tainted by an unrealistic high voter turnout, voter percentages in excess of 100 percent in some areas, irregularity in tendered votes, and duplicate registrations.

The parties also claimed that names of deceased persons appeared on the voter's register, that some counterfoils did not bear voter registration card, elect 27 names not appearing on voters' register, unused ballot paper books of different printing were detected and that results were not posted outside polling stations, among others.

With regard to the alleged voter turnouts exceeding 100 percent, the court was satisfied with submission by the lawyers of the Electoral Commission of Namibia (ECN), the first respondent, that the opposition parties relied on a wrong voters' register for their figures and not on the one gazetted on November 9, 2009.

The rest of the allegations, the judges said, were too 'general' with no legal backing and devoid of evidence to prove they were true.

As the day dragged on yesterday, it was fast becoming clear to those in attendance that the opposition's failure to produce tangible evidence to back their claims was central in shaping the final verdict.

And despite both sides assembling teams of star lawyers, it was those representing the ECN and the ruling Swapo Party, cited as second respondent, who had the last laugh as the curtain came down on the long-drawn court battle.

RDP's Libolly Haufiku, the man who spearheaded the opposition's challenge with the parties' lawyers, yesterday refused to speak to the press at court but had indicated that 'this is definitely not the end of it' insinuating that an appeal may be on the cards.

If that is the route the parties are choosing, the electorate could be in for a long wait for another judgment, this despite the fact that Damaseb's ruling was described by constitutional experts as 'legally water-tight' with little room left for an alternative verdict.

But if the parties choose to accept yesterday's verdict as final, this would signal an end to a year of wasted time and resources, marked by an appeal to the Supreme Court to nullify the initial dismissal of the case in march 2010, and numerous public demonstrations held to demand what yesterday turned out to be a blow below the belt by those who demanded its delivery.

Yesterday's judgement came in the wake of the Supreme Court's ruling in September 2010 that the High Court, which initially dismissed the opposition's case on technicalities, should hear and rule the matter on its merits.

The initial application was lodged with the High Court on January 4, 2010 and the parties were billed for security fees in accordance with that application.

But 10 days later, on January 14, the parties made fresh additions to their initial application, but, it emerged yesterday, no new security fees were paid.

Damaseb yesterday told the packed-to-the-rafters court that the law clearly stipulates that no civil case can be heard without security fees being paid for it.

On that basis, he and Parker resolved to dismiss the submissions of January 14, saying they have no legal grounds to hear it.

The judges, however, hastened to point out that the existing electoral laws were too prone to manipulation and urged lawmakers to consolidate them.

He also lashed out at those in charge of elections for conducting such affairs in a manner that could raise suspicion.
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"Although the present challenge did not meet the test for the invalidation of the NA (National Assembly) 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," Damaseb said.

The Judge President ordered the nine opposition parties to foot the bill incurred by Swapo when the ruling party's lawyers opposed the application on its behalf.

The ECN, on the other hand, was told to pay its own costs.

Lawyers Reinhard Tötemeyer, Albert Strydom and A. S. van Vuuren, instructed by Theunissen, Louw & Partners law firm, represented the nine parties on instruction of Government Attorneys. South African senior counsel Vincent Maleka, alongside Gerson Hinda, Gerson Narib and Sisa Namandje represented the ECN.

Senior Counsel Ishmael Semenya and Dr Sackey Akweenda represented Swapo.

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