REPUBLIC OF NAMIBIA LAW REFORM AND DEVELOPMENT COMMISSION ELECTORAL LAW REFORM PROJECT (ELRP) REVISION AND REFORM OF THE NAMIBIAN ELECTORAL ACT (ACT No. 24 of 1992) - A Background and Consultative Discussion Paper - by Gerhard K.H. Tötemeyer Commissioned and Published by the Law Reform and Development Commission LRDC 19 Windhoek, Namibia; June 2012 ISSN 1026-8405 ISBN 978-99945-0-053-6 PUBLICATIONS OF THE LRDC ANNUAL REPORTS (ISSN 1026-8391)* First Annual Report – 1992 (ISBN 0-86976-382-2) Second Annual Report – 1993 (ISBN 0-86976-383-0) Report on Activities from 1994 to 2002 (ISBN 0-86976-604-X) Annual Report – 2003 (ISBN 0-86976-643-0) Annual Report – 2004 (ISBN 0-86976-667-8) Annual Report – 2005 (ISBN 0-86976-700-3) Annual Report – 2008 (ISBN 0-86976-790-0) OTHER PUBLICATIONS (ISSN 1026-8405)* LRDC 1 Aspects of Family Law: The Abolition of Marital Power and Equalization of Rights between Spouses (ISBN 0-86976-384-9) LRDC 2 The Ascertainment of Customary Law and the Methodological Aspects of Research into Customary Law: Proceedings of Workshop, February/ March 1995 (ISBN 0-86976-385-7) LRDC 3 T.W. Bennett, Customary Law and the Constitution, October 1996 (ISBN 0-86976-397-0) LRDC 4 Report on the law pertaining to Rape (ISBN 0-86976-406-3) LRDC 5 Report on Maintenance (ISBN 0-86976-407-1) LRDC 6 Report on Small Claims Courts (ISBN 0-86976-412-8) LRDC 7 Violence against and Abuse of Women and Children Project: Formal Addresses made at the National Hearing-May 1997 (ISBN 0-86976-412-6) LRDC 8 Violence against and Abuse of Women and Children Project: Verbatim Discussions held at the National Hearing-May 1997 (ISBN 0- 86976-490-X) LRDC 9 Domestic Violence Cases reported to the Namibian Police – Case Characteristics and Police Responses (ISBN 0-86976-516-7) LRDC 10 Report on Domestic Violence (ISBN 0-86976-555-8) LRDC 11 Report on Uniform Consequences of Common Law Marriages (Repeal of Section 17(6) of Native Administration Proclamation, 1928 (Proclamation 15 of 1928) (ISBN 999916-63-57-6) LRDC 12 Report on Customary Law Marriages (ISBN 0-86976-651-1) LRDC 13 Report on Divorce (ISBN 0-86976-654-6) LRDC 14 Report on Public Gatherings (ISBN 0-86976-689-9) LRDC 15 Report on Marital Property (ISBN 978-0-86976-793-1) LRDC 16 Report on Publications (ISBN 978-0-8669766666-792-4) LRDC 17 Report on Adjustment of Fines (ISBN 978-0-86976-791-7) LRDC 18 Further Report on the Law Pertaining to Rape (ISBN 978-99945-0- 052-9) *Number of publication and ISSN and ISBN numbers not printed on all copies. REPUBLIC OF NAMIBIA LAW REFORM AND DEVELOPMENT COMMISSION ELECTORAL LAW REFORM PROJECT (ELRP) REVISION AND REFORM OF THE NAMIBIAN ELECTORAL ACT (ACT No. 24 of 1992) - A Background and Consultative Discussion Paper - by Gerhard K.H. Tötemeyer Commissioned and Published by the Law Reform and Development Commission Gerhard Karl Hans Tötemeyer is a born Namibian, and studied at Stellenbosch (South Africa) and Freiburg (Germany) universities. His academic qualifications include a BA, BA Honours, MA, STD and D.Phil. Aside from his academic career as a professor of political and administrative studies at universities in South Africa and Namibia, he served in Namibia as the Director of Elections, a Member of Parliament, and as the Deputy Minister of Regional and Local Government and Housing. He has published widely, among others on electoral matters. He is a professor emeritus who now consults and addresses audiences on a diverse range of topics. LRDC 19 Windhoek, Namibia; June 2012 ISSN 1026-8405 ISBN 978-99945-0-053-6 LAW REFORM AND DEVELOPMENT COMMISSION The Namibian Law Reform and Development Commission (the LRDC) is a creature of statute established by Section 2 of the Law Reform and Development Commission Act, 1991 (Act No. 29 of 1991). The core mandate of the Commission is to undertake research in connection with all branches of law and to make recommendations for the reform and development thereof. The Commission members are – Mr S Shanghala, Chairperson Ms D Hubbard, Deputy Chairperson Adv J Walters, Ombudsman Mr M Frindt Mr N Marcus Ms D Muroko Mr F Nghiishililwa Mr R Rukoro The Secretary to the Commission is Mr. J.T. Namiseb who heads the Directorate of Law Reform, an organizational component in the Ministry of Justice. The Directorate of Law Reform serves as Secretariat to the Commission, assisting the Commission in the exercise of its powers and the performance of its duties and functions under the Act. The Secretariat is housed on the 2nd Floor, Old Mutual Plaza Building, Post Mall Street, Windhoek. All correspondence to the Commission should be addressed to: The Secretary Law Reform and Development Commission Private Bag 13302 WINDHOEK Republic of Namibia Fax: (09264) (61) 240064 Tel: (09264) (61) 228593 E-mail: [email protected] This publication of the Law Reform and Development Commission of Namibia is issued with the financial assistance of the Namibia Institute for Democracy (NID) which secured the funding for the engagement of Professor Emeritus Gerhard K.H. Tötemeyer from the Embassy of the Government of Republic of Finland to the Republic of Namibia, and the Swedish International Development Agency (SIDA). Foreword Central to any democratic process is the conduct of elections done regularly under conditions that instill confidence in the integrity of not only the electoral process, but also the very democracy under which such elections are conducted. A sine qua non to such integrity in any electoral process is the existence of a credible legal framework, which establishes an independent Electoral Management Body (EMB) competent to conduct all electoral activities in a manner that engenders respect for the outcome of elections. Namibia has established a reliable electoral culture through which the President, Members of the National Assembly, Regional Council (and National Council) and Local Authorities are elected periodically through a Party List System and a First Past The Post (Winner Takes All) system accordingly. Yet time and again, post elections, it becomes evident that for both the EMB and the participants in the electoral contests, electoral rules could have been better implemented, interpreted and definitely differently understood – and nothing exhibits these realizations better than the electoral challenges which ensue. As a young democracy, few things are more important than the avoidance of post electoral misunderstandings, which can degenerate into civil strife and illegitimate governance. Therefore, the Law Reform and Development Commission (LRDC) found it necessary to ensure that following 9 amendments to the Electoral Act, 1992 (Act No. 24 of 1992), the statute books needed some drastic cleaning up. With the assistance of the Namibia Institute for Democracy (NID), backed up by contributions from the Finnish Embassy and the Swedish International Development Agency (SIDA), the expertise of Professor Gerhard K.H. Tötemeyer who braved the vastness of Namibia to attend to consultations with the public, following input from most political parties. This report, Revision and Reform of the Namibian Electoral Act (Act No. 24 of 1992) does three things: Firstly, it provides an update compendium of the electoral process of Namibia, complete with its problems and advantages. Secondly, it records the many suggestions and inputs made of the electoral process throughout the country and through the various fora the LRDC was able to participate at. Thirdly, it provides a necessary thought provoker of what ought to be considered in the next round of law making – how could all the wrongs be made right in the electoral process. The document is therefore a competent accompaniment to the further consultations arranged by the LRDC with political parties, the EMB and other stakeholders leading to the drafting of the draft laws, and it will certainly qualify as a must read for any commentator of the electoral process during the reform and beyond. Hopefully it demystifies many of the concepts laden in the electoral process and provides a handy reference for all considerations made and need to be made for any planning of an electoral process. Sacky Shanghala Chairperson: Law Reform and Development Commission June 2012 Gerhard K.H. Tötemeyer: Revision and Reform of the Namibian Electoral Act (Act No. 24 of 1992) Table of Contents Preface 7 Abbreviations 8 Executive Summary 9 Part 1 Introduction of the Topic The concepts ‘revision’ and ‘reform’ 12 Elections and Democracy 13 The Right to Vote 18 Normative Approach: Electoral Justice 18 Principles 19 Elections in Namibia within an African Context 23 Elections in Namibia within a National Context 25 Electoral Legislation 29 Part 2 Electoral Commission Establishment of the Electoral Commission 30 Appraisal of the Electoral Commission 31 Independence of the Electoral Commission 31 Time schedule for the appointment of the Electoral Commission 34 Composition of the Electoral Commission 34 Term of office 35 Selection committee 36 Criteria for appointment as commissioners 37 Appointing authority of Electoral Commission 39 Reporting authority 41 2 Gerhard K.H. Tötemeyer: Revision and Reform of the Namibian Electoral Act (Act No. 24 of 1992) Task performance 43 Additional task assignments to the Electoral Commission: Time allocation to political parties, associations and organizations on radio and television with regards to election related matters and the role of the media during election campaign 45 Annual Report by the Electoral Commission 48 Part 3 Electoral Commission Act 49 Part 4 Directorate of Elections The Body and its Leadership 52 The Directorate of Elections as integral part of the Electoral Management Body (EMB) 54 Financing of EMB 55 Decentralization of EMB activities 58 Part 5 Electoral Process as Reflected in the Electoral Act Introduction 59 The Electoral Process 59 Electoral System 60 Voter Registration 60 Voter Register 66 Voting Date 69 Selection and Nomination of Candidates 71 Preparation of Elections 73 Voter Education and Voter Information 73 Supervision of Electoral Campaign 76 3 Gerhard K.H.