Three things are certain for Namibian National and Presidential Elections: There will be a court challenge; the courts will rule against the challengers; and the Electoral Commission of Namibia, despite their many obvious failures, again walks away unscathed.
Another thing is true about Namibian elections: No one cares about the Electoral Commission of Namibia’s (ECN) woeful performance until it’s election time again.
Namibia’s Supreme Court recently dismissed the challenge brought by opposition Independent Patriots for Change (IPC) and the Landless People’s Movement (LPM), following last year’s presidential election, clearing the way for Swapo’s Netumbo Nandi-Ndaitwah to take office. Namibia’s first female president will be sworn in on 21 March 2025.
The verdict shows again that the courts are hamstrung by an inefficient legal framework and therefore maintain the status quo in election disputes, despite the existence of irregularities or administrative failures that rendered the election a farce.
Can a farcical election bring about a legitimate government?
The 2019 judgment highlights that the burden of proof is intentionally heavy on those seeking fairness, as courts require substantial evidence of irregularities that significantly impact the election outcome, even when illegalities are apparent. If electronic voting machines could be declared illegal but the results they brought about could stand, and if the disenfranchisement of thousands of voters, the chaos of last year’s elections and the ham-handed way the ECN ran the elections are not concerns to the court, you know that institution does the public’s interest at heart.
When Chief Justice Peter Shivute said, “Their challenge to the outcome for the 2024 presidential election … fails,” without a caveat for the ECN to at least pull up its socks or at the very least point out that the leadership of the organisation should take responsibility for the inefficiencies, it validated farcical elections and therefore, Namibians should get used to less than credible elections in future.
Shortly after the ruling, the IPC’s presidential candidate, Panduleni Itula, said his party would abide by the judgement. The IPC now becomes the official opposition in the National Assembly with 20 seats.
“We are not going to the streets to demonstrate or anything like that,” Itula said.
And on that note, Namibia’s 2024 National and Presidential Elections came to an end.
With this ruling the court condones the ECN’s failure to organise and hold elections within the prescribed time at an acceptable level and when they can’t adhere to this, they can just tell the President to grant them more days. As long as, according to the court, the president doesn’t benefit from such an extension.
It is abundantly clear to the naked eye that the ECN has again failed in the execution of its singular mandate. Previously, the ECN has been criticised within judgements for its less-than-professional handling of election procedures. But not this time.
Does the court expect the electorate to celebrate or have predicted that the ECN would fail to adequately plan and have the required logistics in place to pull off their one job?
With that assertion, does the court say the general public should expect lethargic, uncommunicative, frankly baffling service despite Namibia’s small population and generally low voter participation, from an organisation who has five years to plan this event?
CRISIS
Since Namibia’s first multiparty elections in 1989, which brought about independence in 1990, the country has been lauded for holding regular elections. However, since then, Namibian elections have regularly been subject to court challenges, showing wide dissatisfaction with how the elections are managed.
Elections in Namibia have generally been peaceful but almost never well organised. The 2024 National and Presidential Elections were characterised by a glut of court action, with the ECN central in most.
In October last year, ECN took itself to the Windhoek High Court, asking the court to reverse its (the ECN’s) decision to deregister the Christian Democratic Voice (CDV) party in June. The ECN deregistered the Namibia Economic Freedom Fighters (NEFF) and CDV for failing to submit audited financial reports.
But the chaos started when the ECN asked for exemption from standard procurement procedures to ask for an emergency procurement for ballot papers. This caused widespread condemnation from political parties and the public. Then, a day before the elections, party agents discovered that original voter cards were being issued from the ECN’s head office, which should have only issued duplicate cards at that point.
The election descended into crisis quite early as the ECN struggled to manage a smooth voting process on election day. Voting on the day was marred by shortages of ballot papers, long waiting times, and technical issues with voter identification systems. Some voters waited up to eight hours in the summer heat to vote as polling stations ran out of ballot papers so early in Windhoek, with observers asking if it was by design.
Despite 2 521 polling stations across 121 constituencies, the ECN failed to process 1.4 million voters timeously. The election ended up taking four days plus an additional day for special voting to complete.
The ECN insisted: “A total of 247 polling stations were restocked before they ran out of ballot papers. However, there were 29 polling stations which, either ran out of ballot papers and polling was interrupted and voting resumed after the ballot papers were availed [Sic], or mobile polling stations that could not be reached at the time of close of poll.”
If the court was serious about not disenfranchising voters it would have considered this admission of incompetence by the ECN. Even the tone of the judgement shows disinterest in addressing the failures that brought about the chaotic elections.
But the court’s hands were really tied when the applicants abandoned allegations of electoral irregularities, narrowing the challenge to the legality of Proclamation 34 of 2024.
The special focus on particular details rather than the systemic incompetence and lack of professionalism as a feature of this institution since before independence is a further symptom of the wider issue Namibians are facing.
The next parliament should focus on dealing with the glitches in the actual process of elections. There should be an oversight committee specially focusing on professionalising the service of the ECN and focusing on employing electoral commissioners and managers with no link to political parties. How can the ECN be empowered to ensure better preparation and delivery of its singular mandate? Likely the same logistical and communication infrastructure inadequacies that prevent all government agencies from providing Namibians with even passable service.
At a minimum, it must be accepted that the ECN has failed in its mandate to ensure a civically conscious and confident electorate. Whatever education campaigns or activations were attempted clearly did not make sufficient inroads. Political apathy does not appear in your home without your permission; it is, in fact, the work of a legacy of erosion of trust in the political process and its administrators.
The Judiciary has also not covered itself in glory, with known ruling party functionaries such as Petrus Damaseb happily sitting on the bench in a matter that Swapo is involved in.
Declaring that there is not sufficient evidence to constitute material harm does not mean that the electorate has not found the ECN guilty of harm by their lack of care. Going forward, the ECN must demonstrate the political will to engage Namibians further to address a history of failures. Late ballot papers, long lines, technical difficulties or administrative and logistical incompetence were not unique to the 2024 presidential elections. In fact, those are the characteristics of the ECN.
The lack of voter education and public engagement outside the immediate window surrounding elections and the distinctly unbecoming behaviour of public officials cannot be the hallmark of one of the pillars of Namibian democracy, over three decades post-independence.
This isn’t the ECN’s first rodeo. They specialise in terrible elections.
The list of notable election challenges brought by opposition parties in Namibia since 1990 is long.
1994 Presidential and National Assembly Elections
Challenger: Democratic Turnhalle Alliance (DTA) and other opposition parties.
There were allegations of irregularities in the voter registration process and claims that the ruling party, Swapo, had an unfair advantage due to state resources being used for campaign purposes. The courts dismissed the challenges, citing insufficient evidence to prove that the irregularities significantly affected the election outcome.The court ruling affirmed that while there were minor irregularities, they were not significant enough to overturn the overall outcome of the election. According to the ruling, there was a need for the ECN to better its procedures and transparency, but the courts held that the ECN acted in good faith. No dedicated consolidation of these irregularities and their prescribed rectifications can be found.
1999 Presidential Election
Challengers: Several opposition parties, prominently Congress of Democrats (CoD) and DTA
Opposition parties alleged voter intimidation as well as biased media coverage of other political parties by state-owned media entities as well as irregularities in the counting process, alleging discrepancies in the voter roll. The courts would again dismiss the petitions, citing a lack of evidence. This would mark a slight turn in Namibian politics.
2004 Presidential Election
Challengers: Republican Party of Namibia and Congress of Democrats
The two political parties brought an election application in respect of the National Assembly election that took place on 15 and 16 November 2004 to declare the National Assembly election null and void and of no force and effect. The court ordered a recount.
2009 National Assembly and Presidential Elections
Challengers: Rally for Democracy and Progress and Others
The election application of 4 January 2010 sought 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. The parties attacked the conduct of the election and the counting process. Claims that unrealistically high voter turnout percentages detected in some constituencies prompted suspicions of rigging and ballot box stuffing. The presidential election challenge was struck from the roll on the ground that the applicants had failed to provide security for respondents’ costs as required by law. With regard to the National Assembly elections, it was as a result of the application not being properly before the court. An appeal to the Supreme Court only against the judgment and order in respect of the NA elections.
Heard on: 1 and 2 March 2010: Reserved on 20 September 2010.
Delivered on: 14 February 2011
2014 Presidential and National Assembly Elections
Challengers: Rally for Democracy and Progress (RDP) and DTA
The use of electronic voting machines (EVMs) brought about widespread criticism as opposition parties alleged that they were prone to malfunctioning and raised concerns due to the lack of an evident paper trail. While the courts found fault with the technical issues with the EVMs, this, according to the ruling, did not materially impact the integrity of the elections.
2019 Presidential and National Assembly Elections
Challenger: The then-independent presidential candidate Panduleni Itula, on the evening before the 27 November election, attempted to get the court to stop the ECN from using EVMs without a verifiable paper trail. The attempt failed.
After the elections, Itula and four other presidential candidates took their challenge, the use of EVMs without a verifiable paper trail, to the Supreme Court.
Again, the court ruled that while the transparency and credibility of the election were compromised by the lack of a verifiable paper trail, the evidence did not show that this had an impact on the electorate’s fundamental right to vote.
2024 Presidential Election
Challengers: The Independent Patriots for Change (IPC) later joined by LPM
The parties contested the November 2024 Presidential Election results, citing concerns over voting extensions due to logistical and technical issues. The ECN’s decision to recommend the extension of voting hours in some areas wasn’t unlawful and didn’t amount to the calling of fresh elections as alleged.
