Namibian election challenge could be put on ice until Supreme Court decision

Namibia’s Electoral Court will deliver a ruling on Monday, 20 January 2025, as to whether the Independent Patriots for Change’s (IPC) challenge of Namibia’s National Assembly elections will be stayed until the country’s Supreme Court delivers a verdict on the validity of the presidential elections.

Judges Hannelie Prinsloo, Orben Sibeya and Esi Schimming-Chase did not hear any oral arguments on the validity of the IPC’s National Assembly election challenge on Wednesday, 15 January after the judges asked the lawyers present to address the question of whether the National Assembly challenge should be stayed.

In both of the cases, the IPC is arguing that the proclamation by Namibia’s outgoing president, Nangolo Mbumba, to extend the presidential and National Assembly elections last year was unlawful.

Read in Daily Maverick: Legal storm brews in Namibia as election results come under scrutiny

Anton Katz, the South African senior counsel who is leading the IPC’s team of lawyers, argued in favour of putting the IPC’s National Assembly election challenge on hold until the Supreme Court makes a ruling. Katz said that the same arguments being made in Namibia’s Electoral Court will be made in the Supreme Court on 10 February.

Advocate Anton Katz. (Photo: Luba Lesolie /Gallo Images)

Katz also stated, in written arguments filed at the court, that if the Supreme Court’s ruling finds the extension of Namibia’s presidential and National Assembly elections lawful, then the IPC’s case in the Electoral Court would fall away. But, if the Supreme Court finds the president’s proclamation unlawful, the Electoral Court will be bound by that decision and will have to determine how that ruling affects the National Assembly election.

Katz’s reasoning was corroborated by Patrick Kauta, who is representing the Landless People’s Movement (LPM), a party asking to join the IPC as a co-applicant in the case.

Kauta argued that the Supreme Court’s ruling would limit the issues on which the Electoral Court would have to decide and that the Electoral Court case should be extended until 11 February — the day after the Supreme Court hearing — and that the LPM’s application to join as a second applicant should be heard then.

Legal representatives for Namibia’s president, the Electoral Commission of Namibia (ECN) and the ruling South West Africa People’s Organisation (Swapo) did, however, not agree.

The Electoral Commission of Namibia addresses the media at its headquarters in Windhoek, Namibia. (Photo: Ernst Calitz)

Sisa Namandje, who is representing Swapo, argued that an urgent court application to challenge an election should take place without delays.

Representing Namibia’s president, senior counsel Raymond Heathcote took multiple jabs at the IPC and its decision to stay the Electoral Court proceedings.

Taking inspiration from Winston Churchill, Heathcote said the IPC “shall continue to brutalise the truth on the beaches of Walvis Bay and Swakopmund. They shall continue with their false facts and fake news on Facebook. When the hour of reckoning comes in this court, they will opportunistically embrace a possible stay to avoid political starvation.”

Scrutiny for security payments

Namibia’s Electoral Court ordered the IPC to pay N$450,000 (R450,000) in security for costs during the election challenge.

Lawyer and secretary-general of Namibia’s National Unity Democratic Organisation, Josef Kauandenge, told a local paper that the security deposit could be seen as a built-in deterrent to prevent an aggrieved party from approaching the country’s courts because of a lack of funds.

“It is disheartening to note that at this hour, we are still preoccupied with the issue of security costs versus access to justice,” added Kauandenge.

Henk Mudge, the leader of Namibia’s Republican Party, also opposed the ruling, saying, “There should be no cost when an election is questioned or the measures in the election, and in any case, it is not something that we started. It is something that the ECN failed in and therefore, they should be the ones that supply security should [it] ever be needed, but it shouldn’t even be part of the process.”

Shambolic elections

Namibia’s 2024 presidential and National Assembly elections were marred by technical malfunctions and ballot shortages which resulted in the country’s president amending the initial election proclamation to extend the election by two days.

Read in Daily Maverick: Namibia’s election chaos: Technical failures and ballot shortages spark outrage among voters and parties

The ruling Swapo party once again emerged victorious, with 51 seats out of 96 in the National Assembly. This election cycle did, however, continue to demonstrate the growing decline in the party’s popularity. The party won 77 seats in 2014 and 63 seats in 2019.

Namibia’s first woman president-elect, Swapo’s Netumbo Nandi-Ndaitwah, was also elected with nearly 58% of the vote.

Read in Daily Maverick: Namibia has its first woman president. Namibians say it won’t mean much for women

Almost all political parties that participated in the election have come forward saying that they do not recognise the results and that they support the IPC’s legal challenge. DM