Election Watch Produced by the Institute for Public Policy Research (IPPR) Issue No. 9 2010 Unfinished business Elections Explained

Electoral disputes

art 7 of the Electoral Act deals Pwith what happens if there is a dispute about the election results. Court applications disputing the re- sult of an election should be made within 30 days of the announcement of the result of the election in ques- tion. The applicant also has to pay an amount as security for future costs that the applicant may become liable for.

An election application can be presented to the court by a voter, a political party, candidates or the At- amibia’s elections took place on November 27 and 28 2009 utire Kaura (DTA), Justus Garoëb (UDF), Kuaima Riruako (Nudo), torney General. and the final result was certified and declared by the Elec- Ben Ulenga (CoD), Ignatius Shixwameni (APP), Henk Mudge N Election applications must be toral Commission of Namibia (ECN) on December 4 2009. Finish (RP), Frans /Gôagoseb (NDMC) and David Isaacs (DPN). heard in open court and should be and klaar? Far from it. There are nine respondents, the first being the Electoral Hardly any opposition parties attended the ECN’s announce- Commission of Namibia. The other respondents are Swapo and decided on within 60 days from the ment of the final results as part of a boycott over the way the President Hifikepunye Pohamba, and the other parties – Swanu, date of the presentation of the ap- election had been organized. The post-election situation has Monitor Action Group (MAG), the Communist Party (CP), the plication to the registrar of the court turned out to be extremely messy. Initially, nine opposition parties National Democratic Party (NDP), and presidential candidates or within a longer period if special approached the courts to gain access to the materials related to Usutuaije Maamberua (Swanu) and Attie Beukes (CP). circumstances apply. the election so that they could carry out their own audit. The court can only set aside the Citing irregularities, the nine parties won access to the elec- Mistakes or rigging? result of an election if any irregularity tion materials just before Christmas in a judgement handed down It is not clear if the opposition parties are alleging deliberate or illegal practice is deemed to have by Judge Collins Parker. The opposition parties, having won the rigging of the election or a series of irregularities caused by right to audit election materials, said they would then make a incompetence and other factors which undermined the accu- affected the result of the election. In decision on whether to go on to challenge the results in court or racy and fairness of the final result. other words, mistakes that did not accept them. The Judge gave the ECN until December 28 2009 It is clear that there are loopholes in the system which could affect the final result would not be to comply with the judgement and make the materials available, be exploited for the purpose of rigging an election. But whether enough to have a result nullified. which included the returns from polling stations and the counter- they were exploited for such ends remains to be seen. With much If the court states in a report on an foils of ballot paper books. The opposition parties then had a of the evidence not yet in the public domain, there has inevitably election application that any person week to complete their audit. Having reviewed the results for 50 been much speculation, including claims that extra ballot paper has been guilty of a corrupt and il- constituencies, the parties said they had enough evidence to books were in circulation, some without registration numbers on legal practice or that there is reason bring a case calling for the election result to be set aside. As a their counterfoils. Other claims yet to be substantiated by the result, another court application was brought on January 4 2010, court, include: that 19,000 people voted without being on the to believe that corrupt and illegal which sought the nullification of the National Assembly election voters register (this is allowed as long as a special form is filled practices have extensively prevailed or alternatively a recount of votes cast. On January 14, the oppo- in); that the names of 92,000 dead people appeared on the vot- at the election the information should sition parties expanded their court challenge to include the pres- ers register and that 58,000 people were registered twice. Alleg- be sent by the registrar of the court to idential election when they presented new documents to the edly, these irregularities could have meant the real National the Prosecutor-General, with a view court. Assembly result was different from the announced result by 11 to prosecution. Unconfirmed reports have said the High Court will hear the seats. The court will have to decide whether these claims are The Electoral Act does not case on February 5 2010, although officially a date has not been backed by enough evidence before ordering any nullification or set. recount. address the issue of what happens if The parties challenging the election results are: the Rally for The opposition also focused on possible breaches of the a court case dealing with an election Democracy and Progress (RDP), the DTA, the United Democratic Electoral Act, such as the failure to post results at some polling application continues after the five- Front (UDF,) the National Unity Democratic Organisation (Nudo), stations, the ECN’s use of ‘verification centres’ to check results year terms of office for the President the Congress of Democrats (CoD), the All People’s Party (APP), after official counting had ceased, and the apparently inaccurate and National Assembly members are the Republican Party (RP), Namibia Democratic Movement for and wildly fluctuating voters register, among others finished. Change (NDMC), and the Democratic Party of Namibia (DPN), as Mistakes alone may not be enough to persuade the court to well as presidential candidates Hidipo Hamutenya (RDP), Katu- continued on page 2

About Election Watch Election Watch is a bulletin containing electoral analysis and voter education, which will appear regularly in 2009 and 2010. It is produced as a PDF download and as a printed newspaper insert. Election Watch is a project of the Institute for Public Policy Research (IPPR). It is produced with the support of the Canadian Fund for Local Initiatives (CFLI), the Hanns Seidel Foundation (HSF) and The Namibian newspaper. The content of Election Watch is the sole responsibility of the IPPR. Comments and feedback should be sent to the IPPR, PO Box 6566, Windhoek, Namibia. Tel: (061) 240514; fax: (061) 240516; email: [email protected]. For more on Election Watch check http://www.electionwatch.org.na Election Watch Issue No. 9 2010

order a re-run or a recount. The mistakes would have had to be significant enough to have As to what happens if the court does nullify an election result, we are in uncharted affected the result of the election. territory – at least for Namibia. Neither the Constitution nor the Electoral Act make clear Section 95 of the Electoral Act states that “no election shall be set aside by the court what should happen if an election dispute drags on beyond the five year terms of the Presi- by reason of any mistake or non-compliance … if such a mistake or non-compliance did dent and the National Assembly, both due to end on March 21 2010. If, as March 21 not affect the result of that election.” approaches, the court process is still ongoing, a recount is still due or ongoing, or a new Section 36 states that “if through accident, inadvertence or oversight, anything required election is to take place, it would seem the current National Assembly would have to sit in by law to be done in the preparation of any voters’ register is erroneously done or omitted emergency session to add a clause to the Constitution setting out a transitional arrange- to be done, the voters’ register in question shall not be invalidated thereby…”. ment whereby the existing government and president stay in power until the process is The ECN and other respondents were yet to file their countering affidavits at the time resolved. There are inherent dangers in such a move, but if such a situation arises it may of going to press. become inevitable. Safeguards, including time limits and a possible reduction in executive power, may have to be considered for such a transitional period. Constitutional vacuum? The issues at stake

hese are some of the crucial issues likely Act people not on the register are allowed to Tto be weighed by the court when assess- vote as long as they have a valid voters regis- ing the merits of the opposition election tration card. However, their details are application: entered on a separate form before they are allowed to vote. Again this comes down to an Ballot boxing stuffing inaccurate voters roll, but will that be enough If there are ballot papers in ballot boxes evidence to derail the result? Perhaps only if that are not from the original ballot paper it can be proved that some of the 19,000 did books then this would be constitute ‘smoking not have the right to vote. gun’ evidence of vote rigging. Since there are no voter registration numbers on cast ballots, Failure to post results they might be difficult to spot. Differences in According to an amendment to the Elec- print quality or lack of the ‘secret mark’ on toral Act, results were to be posted at polling the back of the paper might be signs that stations once the counting and announcing extra ballots have been printed for the pur- at a polling station had been completed. The pose of ballot stuffing. Other indications of opposition claim that in at least 41 constitu- ballot irregularities could include ballot paper encies the results were not posted as books that have counterfoils with no voter required by the law. Again, the question registration numbers written on (although before the court will concern whether such this could be a sign of incompetence or lack an omission could have a material effect on of training among electoral officials) or false the final result? voter registration numbers written on. Turn- outs of over 100 percent in some constituen- Use of ‘verification centres’ cies are not in themselves evidence of vote One of the reasons for the delay in rigging, since the tendered ballot system announcing results was the apparent check- could potentially create such a situation with- ing and re-checking of results at constitu- out any laws being broken. ency centres and at the results centre in Windhoek. Such a drawn-out process inevi- The ever-changing voters register tably raises suspicions. Also, is such a verifi- The various versions issued to the parties cation process legal, particularly if it involves in the run up to the election caused a lot of The result from Baines polling station in Windhoek West constituency - posted in a public re-opening ballot boxes without the pres- confusion. The question is: was this a place as required by law after counting was finished ence of party agents, observers and the deliberate attempt to make it difficult for police? According to Section 87 of the Elec- parties and observers to track down vote rigging or Duplicates and dead people toral Act, a returning officer in a constituency is was it plain incompetence on the part of the ECN? The opposition parties claim there were 92,000 allowed to verify the correctness of returns sent The voters register issued to the parties two days dead people on the version of the voters register last through by presiding officers. before the election contained the names of 822,344 given to them just before the election and 58,000 voters. If this correct, then the eventual turn out of duplicate names. If true this would demonstrate that Mobile polling stations some 810,000 votes is extremely, if not impossibly, the voters register was highly inaccurate. However, There were more than 2,000 mobile polling sta- high. However, the ECN maintains that the official the Electoral Act appears to state that an inaccurate tions as compared to nearly 1,000 fixed polling sta- voters’ roll was one published in the Government voters register alone is not enough to have an election tions. There were fears, prior to the election, that if Gazette on November 9 2009. That register contained set aside since ‘honest mistakes’ would not invalidate irregularities were to occur they would take place at the names of 1,181,803 voters. the register. The ECN is likely to argue that the use of mobile polling stations where there were few party indelible and invisible inks prevented double voting agents or observers to check what was going on. What is the voting age population? anyway. However, a deliberately inflated voters regis- What would be a realistic number of registered ter could have been used to allow ballot stuffing, since Tendered votes voters? This would depend on government popula- unrealistic turnouts might be difficult to spot if the vot- This system which allows Namibians to vote any- tion projections as to the number of people over 18 in ers register has been falsified. This would probably where in the country rather than in their home con- 2009. According to National Planning Commission only come into play as a key factor if there is clear stituency only appears to have caused a series of projections the voting age population could be around evidence of ballot box stuffing to link to it. problems, particularly as the ECN does not announce 1.3 million out of total population of 2.1 million. That the tendered ballots cast separately. This can give the would make a voters register of 822,000 look quite People not on the register appearance of turnouts in excess of 100 percent in low and a voters register of 1.2 million look very high. According to the opposition parties at least 19,000 some constituencies. Whether or not it was linked to It depends which figure the ECN present to the court people who weren’t on the voters register voted. any malpractice, the tendered vote system creates as the real voters register. Some people were inexplicably left off the register loopholes and confusion which could be used by even though they had registered properly (MAG MP those wishing to manipulate an election result. Jurie Viljoen being one of them). Under the Electoral

2 Election Watch Issue No. 9 2010

The tendered vote controversy, again Setting the Standards he tendered vote dered votes, more Tonce again than in previous Electoral disputes raised questions elections, were cast he African Charter on Democracy, following the 2009 in the northern Elections and Governance seeks Presidential and regions of the T National Assembly country. to entrench in the continent a political elections on Why this was culture of change of power based on November 27 and questioned was the holding of regular, free, fair and 28. because people transparent elections conducted by Tendered ballots from the northern competent, independent and impartial have long been a regions, which are national electoral bodies. The Charter source of some Namibia’s most was adopted by the African Union on controversy in populous and prob- January 30 2007. Namibian elections ably most underde- and one of the inter- veloped areas, have Article 17 of the Charter says that national observer historically tended States must “establish and strengthen missions, following to migrate south, so national mechanisms that redress the elections of when elections have election-related disputes in a timely November, went as come around the manner” and also “ensure that there is far as calling for a number of tendered a binding code of conduct governing

“review” of the use Ballot box confusion ... tendered votes and ordinary votes votes was propor- legally recognised political stakehold- of tendered votes in tionaly generally ers, government and other political ac- such important elections. noon before the elections, with the considerably higher across the central tors prior, during and after elections. Critics of the tendered vote system number of voters varying from 1.3 million and southern regions than across the The code shall include a commitment say that in the absence of an accurate to just over 820 000, according to which north itself. by political stakeholders to accept the and reliable voters roll, ideally digital and version is accessed. What makes the whole tendered vote results of the election or challenge them encompassing voters across all 107 con- The state of the voters roll was one of issue murky and controversial is the per- through exclusively legal channels.” stituencies, being easily accessible at all the central issues with which some politi- ception that the ECN doesn’t have an polling stations across the country, the cal parties approached the High Court to adequate system available to reconcile The Southern African Development tendered ballot can become a means of have November’s election results set tendered votes to their home constituen- Community (SADC) adopted the SADC manipulating electoral outcomes. aside. cies. Compounding this is the fact that Principles and Guidelines Governing Supporters of the tendered vote sys- The used of tendered ballots was during the last elections, polling stations Democratic Elections at the SADC tem point to the fact that in highly mobile questioned in both the 1999 and 2004 only had a voters roll available for the par- Summit in Mauritius in August 2004. societies, such as Namibia’s, expecting elections, and following the 2004 polls, ticular constituency in which the station people to return to their home constituen- the ECN itself undertook to review the was situated and thus a voter could not In a section on the principles gov- cies just to vote for one or two days once use of tendered votes in the five years be marked off against their home con- erning elections, the SADC document every five years is unrealistic. leading up to last year’s elections. How- stituency, regardless of where they voted. states that “challenge of the election While both arguments have strong ever, the electoral body doesn’t seem to In light of this, it remains unclear, as it did results as provided for in the law of the merits, the fact is that Namibia, or rather have given the issue much thought during in previous elections, how the electoral land” should be allowed (2.1.10). Later the Electoral Commission of Namibia that time. body handles the tendered ballot. in a section on the responsibilities of (ECN), doesn’t have an accurate and reli- On the election days of last Novem- Against the background of so much states holding elections, it is stated able voters roll, which ECN Director of ber, a great many people cast their vote suspicion of the tendered ballot system, that SADC countries must “establish Elections, Moses Ndjarakana, admitted as tendered in both the Presidential and maybe it has become time for the ECN to impartial, all-inclusive, competent and to in the week before the elections. This is National Assembly elections, but it is really conduct a “review” of this particular accountable national electoral body evidenced by the fact that in the weeks impossible to say how many as the ECN voting system and to either make the use staffed by qualified personnel, as well prior to the elections at least four ver- has not provided a breakdown. What was of it more transparent and efficient or sions of the voters roll were released to striking about last year’s elections though possibly drop the tendered ballot as competent legal entities including political parties, the last one on the after- was that an extraordinary number of ten- altogether. effective constitutional courts to ar- bitrate in the event of disputes arising from the conduct of elections (7.3). Official Election Results from the Electoral Commission of Namibia

Abbrevia- Presidential Total Percentage Political Party Total Votes Percentage tion REJECTED BALLOTS 12,363 1.52% REJECTED REJECTED BALLOTS 10,576 1.30%

ATTIE BEUKES 1,005 0.12% APP ALL PEOPLE’S PARTY (APP) 10,795 1.33% CP COMMUNIST PARTY(CP) 810 0.10% BENJAMIN ULENGA 5,812 0.72% COD CONGRESS OF DEMOCRATS (COD) 5,375 0.66% DAVID ISAACS 1,859 0.23% DPN DEMOCRATIC PARTY OF NAMIBIA (DPN) 1,942 0.24% FRANS GOAGOSEB 1,760 0.22% DTA DTA OF NAMIBIA (DTA) 25,393 3.13% HENRY MUDGE 9,425 1.16% MAG MONITOR ACTION GROUP 4,718 0.58%

HIDIPO HAMUTENYA 88,640 10.91% DMC NAMIBIA DEMOCRATIC MOVEMENT FOR CHANGE 1,770 0.22% NDP NATIONAL DEMOCRATIC PARTY 1,187 0.15% HIFIKEPUNYE POHAMBA 611,241 75.25% NATIONAL UNITY DEMOCRATIC ORGANIZATION NUDO 24,422 3.01% IGNATIUS SHIXWAMENI 9,981 1.23% (NUDO) RDP RALLY FOR DEMOCRACY AND PROGRESS (RDP) 90,556 11.16% JUSTUS GAROEB 19,258 2.37% RP REPUBLICAN PARTY OF NAMIBIA 6,541 0.81% KATUUTIRE KAURA 24,186 2.98% SWANU SOUTH WEST AFRICA NATIONAL UNION (SWANU) 4,989 0.62% KUAIMA RIRUAKO 23,735 2.92% SWAPO SWAPO PARTY OF NAMIBIA (SWAPO PARTY) 602,580 74.29% USUTUAIJE MAAMBERUA 2,968 0.37% UDF UNITED DEMOCRATIC FRONT OF NAMIBIA (UDF) 19,489 2.40%

3 Election Watch Issue No. 9 2010

Q & A What the local observers said Q: Can the swearing in of a new xtracts from the preliminary Comments on the post- president and government be Estatement of the Joint NANGOF election phase delayed if an electoral dispute Trust and SADC-CNGO Observer Announcement of results: At in the court has not been Mission in respect of the 2009 the Central Election Results resolved? Namibian Presidential and National Centre (CERC) the ECN was Assembly Elections; receiving the results under a A: Namibian law is unclear on this. The The Namibia Non-Governmental cloak of secrecy. Accredited Constitution clearly states that both Organisations Forum (NANGOF) persons to the CERC were all the President and members of the Trust in partnership with the SADC locked out and left idling their National Assembly can only serve Council of Non-Governmental time away in the foyer. This has for a maximum of five years from Organisations (SADC-CNGO) par- raised serious questions about the dates they are sworn in (Articles ticipated in the observation of the the transparency of the ECN 29 and 50). The Electoral Act has Namibian Presidential and National and the purpose of the CERC. a section (Part 7) on election court Assembly Elections deploying 47 applications but does not say observers to strategic constituen- Media coverage: As far as the publicly what would happen if a court case cies in the country. funded state media are concerned the Tendered votes: It is clear that the Ten- continued beyond the five year- news coverage on NBC TV was glaringly dered Vote System remains a challenge term limits of elected politicians. Comments on the pre-election phase biased in favour of one political party; so to the ECN, thereby creating serious According to the Electoral Act, General: The late tabling of the Electoral were the radio broadcasts, while the New logistical and election management chal- court cases dealing with disputes Amendment Act in 2009 did not allow for Era newspaper and Nampa attempted to lenges, resulting in more time being taken should be dealt with within 60 adequate input from stakeholders. The present some balanced information. to tally, compute and announce the days of the application being filed. Voter Education by the ECN was inade- results. The practice of lumping results of As long a there is no unforeseen quate and this could be one of the rea- Role of Security Forces: The Mission ordinary votes and tendered votes delay to court proceedings, this sons for the unacceptably high number of adds its voice to the numerous commen- together contravenes Section 26 of the should mean that the High Court spoilt ballots (over 10,576 out of 811,143). dations for the exemplary lead taken by Electoral Amendment Act of 2009. This will pronounce on the opposition The election dates were announced the Minister of Safety and Security, the unlawful practice resulted in voter turn- case calling for nullification of the very late (4 September 2009) and not by Inspector-General of the Namibian Police, outs of above 100%. result by the end of February or the Head of State as required by Section supported by regional commanders, exe- early March. However, if the court 50(1)(b) of the Electoral Act, Act 24 of cuting their mandate free from political Verification Centres: Section 25(5) of the orders a re-run of the election, there 1992 as amended, but by the ECN. This interference, fear or favour and instruct- Electoral Amendment Act of 2009 makes could be further constitutional was clearly in violation of the said section ing their subordinates to act likewise. it clear that the only place where re- implications (see below). of the Act. The lawful announcement of counting of votes is authorised is at the the election dates by the President was Comments on the election phase polling station. No recounting of ballots Q: What happens if the High only gazetted on 30 September 2009. Polling Days: Both polling days were should be done at the so-called ‘verifica- Court does nullify the result peaceful and calm. The voting process tion centres’. of either or both the National Voter registration: The continued prac- was generally smooth. Assembly and Presidential tice of registering voters 20 years after The Mission however noted the fol- General: The simultaneous announce- elections? independence by sworn statement rather lowing issues of concern:- ment and rejection of the overall results A: Again the law is not specific on this, than by Namibian identification docu- • Limited deployment of party agents. has created a nationwide state of uncer- but there should be a re-run of the ments diminishes the credibility of the • Inadequate knowledge of party agents tainty. Based on our findings in the pre- election that was nullified by the Voters’ Roll. Prospective voters were regarding their roles and election, election and post-election court. It is not clear at what point frustrated and turned away by inade- responsibilities. phases the Mission has serious reserva- the electoral process would have quately trained ECN registration officials, • Deficiencies in the layout at some poll- tions about the freeness and fairness of to begin again. If the new process who insisted on documents required for ing stations. the election process. also involves a new period of voter voter registration for local authority elec- • Inconsistencies in the application of the registration, it could be a period tions, while these citizens only wanted to inking procedures in some polling of several months before a new be registered for the Presidential and stations. election is held. In the event of this National Assembly elections. • The widely observed failure of either Election Watch happening, neither the Constitution There were at least four different ver- one or both of the inks. nor the Electoral Act specifically sions of the Voters’ Roll which has brought • Inconsistent interpretation of the over- is supported by the states that the existing National the Voters’ Roll into disrepute. Concerns night vigil at ballot boxes. Assembly and President should were raised by most stakeholders that the • Fatigue of the polling officials, police continue in power during the inter- Voters’ Roll did not reflect thorough and party agents, especially on the regnum. It may be that if the court checking and updating. second day of the elections, which had orders that a new election be held, a negative effect during counting. the present National Assembly Political tolerance: In contravention of the • Interference by some party agents with would have to meet before March ECN’s Code of Conduct for Political Par- the voting. 21 to add a clause to the Constitu- ties to which all the fourteen (14) partici- tion that would enable an existing pating political parties had subscribed, the Counting: The Mission regards it as a government and president to stay election campaign process was tainted by positive development that the new Elec- in power until an electoral dispute political intolerance and intimidation. Cer- toral Amendment Act provides for count- is resolved. Any such clause would tain regions have effectively been declared ing of votes at each polling station. How- have to be carefully worded to avoid as “no-go areas” for certain parties. Vio- ever, the legal requirement of posting of any future attempts by incumbents lence was used to prevent members of the results at polling stations was not adhered to stay in power indefinitely. opposition campaigning in such areas. to in numerous cases.

What is the IPPR? The Institute for Public Policy Research was established in 2001 as a not-for-profit organisation with a mission to deliver, independent, analytical, critical yet constructive research on social, political and economic issues which affect development Namibia. The IPPR was established in the belief that development is best promoted through free and critical debate informed by quality research. The IPPR is independent of government, political parties, business, trade unions and other interest groups and is governed by a board of seven trustees. Anyone can receive the IPPR’s research free of charge by contacting the organisation at 14 Nachtigal Street, Windhoek; PO Box 6566, Windhoek; tel: (061) 240514; fax (061) 240516; email: [email protected]. All IPPR research is available at http://www.ippr.org.na. Material related to Election Watch is available at http://www.electionwatch.org.na

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