Namibia’s constitution, democracy and the electoral process Gerhard Tötemeyer Introduction The electoral process is fundamental to democracy and an integral part of it. Elections have fascinated political analysts for a long time, and with good reason. They determine who is to take control of government. Namibia has constitutionally committed itself to a multiparty democracy and free elections, which guarantee each voter a free and independent choice. Since the Constitution commits Namibia to multiparty democracy, elections remain an important exercise in pluralism and, as such, an essential element in democratisation. Namibia’s electoral process has a long history, which is etched in the country’s narrative of colonial rule and the consequent struggle for liberation. The country gained its independence on 21 March 1990, which was preceded by the first democratic elections for the Constituent Assembly as supervised by the United Nations Transition Assistance Group (UNTAG). At Independence, the Constituent Assembly was converted into the first National Assembly. With the promulgation of various pieces of legislation,1 the first Regional and Local Authority Council elections took place in 1992. The Presidential and National Assembly elections followed two years later, during which the first President of Namibia, Dr Shafiishuna Nujoma, was popularly elected for the first time since independence. As the first President was not elected when the members of the Constituent Assembly were elected in 1989, it became an issue when President Sam Nujoma was nominated for a third term of office. It was argued that the Constituent Assembly was converted into the first National Assembly in 1990, and not elected. It was further held that the President had only been elected for the first time in the Presidential and National Assembly elections in 1994; in other words, by 1994, he had only been nominated once and popularly elected once. To play it safe, Article 134 of the Constitution was amended in 1998 to the effect that “notwithstanding Article 29(3), the first President of Namibia may hold office as President for three terms”. After President Nujoma had served his third term, Article 134 was again amended to provide that any future President could only serve two terms in office. 1 The Regional Councils Act, 1992 (No. 22 of 1992); the Local Authorities Act, 1992 (No. 23 of 1992) and the Electoral Act, 1992 (No. 24 of 1992). 287 The Constitution, democracy and the electoral process The first elections after independence – electing regional councillors according to the winner-takes-all (first-past-the-post) electoral system, and local authority councillors on a list, thus applying the proportional electoral system – had a very confident start. The Electoral Act2 was hurriedly drawn up before the Regional and Local Authority Council elections commenced. The South African electoral law was simply adapted to suit Namibia. Elections became a learning process. Mistakes were made and shortcomings identified. Over the years, several amendments have been made to the Electoral Act. Nonetheless, some parties have found it hard to stick to some of the prescribed rules and practices. Time and again, the Electoral Commission has been accused of having transgressed certain rules and regulations and has been taken to court by opposition parties. The latter parties were usually defeated in court, the judges having been of the opinion that the outcome of the elections would not have been affected by the issue in question or at least not to the effect that the elections should be rerun or could be discredited. The outcome of the most recent case against the Commission, initiated in 2009 by nine opposition parties who accuse it of not complying with all the rules of the Electoral Act, is still awaited. Except for minor flaws such as the alleged poor handling of tendered votes and the lapse of too much time between elections and the announcement of election results, most international observers have judged that, in general, elections in Namibia have been run in an honest and transparent way and that they have been peaceful – despite some criticism having been expressed on the fairness of some of the elections in the past. Such positive verdicts do not imply that there is no room for improvement on a number of issues and aspects to which the Electoral Commission and the Directorate of Elections can fruitfully attend. It is an opportune time to review the Electoral Act in its totality, for example, in cooperation with all the stakeholders involved in the electoral process. To a large extent, the Act has served its purpose reasonably, but it is not perfect. For this reason it is still not easy for the Electoral Commission and the Directorate of Elections to fully satisfy all the stakeholders in an election. One day, while I served as Director of Elections between 1992 and 1998, one of the Ministers – a certain H Pohamba3 representing the SWAPO Party of Namibia4 – burst into my office and accused me of favouring the opposition party. The very next day, the Afrikaans daily, Die Republikein, which supported the official opposition party, the DTA of Namibia,5 accused me of siding with the SWAPO Party. It was then that I knew the Directorate of Elections was on the right track! 2 No. 24 of 1992. 3 Today, President of the Republic of Namibia. 4 Formerly the South West Africa People’s Organisation (SWAPO). 5 Formerly the Democratic Turnhalle Alliance (DTA). 288 The Constitution, democracy and the electoral process The nexus between democracy and elections An electoral process in a democracy, culminating in the holding of elections, cannot be separated from the political empowerment of the electorate exercising their constitutionally secured right to vote. The democratic electoral process also cannot be separated from the observance of fundamental human rights and freedoms as enshrined in the Constitution: the promotion of equality, mutual security, and respect for human dignity. The electoral process is fundamental to any competitive democracy. It is a process whereby eligible voters are mobilised to express their political will and choice. Elections themselves are a mandate for voters to exercise their influence over the orderly and responsible running of the state. The freely elected government is expected to represent the will of the people in the way in which public power is distributed in the common interest. In terms of the doctrine of the sovereignty of the people, government remains answerable to the people at all times. Elections held at regular intervals are intended to provide a principal link between the rulers and the ruled. Hence, a great many questions can and should be asked about voting in elections. Among those that are of vital importance in a representative democracy are the following: • What is the best way in which to organise democratic elections? • What is the most efficient voting system? • Have voting patterns been transformed by recent social, economic or political change? As Namibia is committed to a multiparty democracy, elections have become an important exercise in pluralism and, as such, an essential element in the democratic process. An electoral process cannot be separated from capacitating and empowering voters: it is only successful and meaningful when people have taken ownership of it. It is a self- identification process with a democratic political system, its structures and institutions. It is the duty of the electoral bodies concerned to ensure that the electoral process is people-friendly and internalised. Nobody should feel marginalised – and this includes physically incapacitated people, as well as voters in old age homes, hospitals, prisons, and at sea, or citizens that find themselves outside the country at election time. Democracy presupposes each citizen has equal value, there is a committed and affirmative state, and that a freely elected, people-driven government exists. The electoral process is at the heart of democratic capacity-building and involves the whole of society. In the case of Namibia, with its suppressive colonial past, the building and proper functioning of democratic institutions has taken root, but needs constant attention. Although already 20 years old, independent Namibia is still relatively young and it may take time before it is fully mature. Its democracy is still fledging and must be constantly tested. This can be executed through free, transparent, responsible and fair elections at all three levels of governance: national, regional and local. The building of democracy includes not only the pursuance of political values and political attitudes that uphold democracy, but also the conducting of comprehensive voter 289 The Constitution, democracy and the electoral process registration, effective electoral campaigns, and proper voter education as an integral part of the electoral process. An electoral process can only be meaningful if voters understand the essence and consequence of democracy as being related to elections. It is claimed that democracy would be better understood if people could ‘eat it’, in other words if it would deliver tangible benefits such as employment, adequate social care, eradication of poverty, sufficient food, comprehensive medical services, quality education, and other benefits. Namibia, 20 years after independence, is still challenged by principle issues, some of which concern how to fully actualise democracy and to make it optimally credible. It cannot be denied that a conceptual linkage exists between socio-economic rights, cultural rights and democracy, as it does between a functioning democracy and electoral processes: both are expected to foster and strengthen stability, prosperity, security, and peace in society. It is not only the government that is called upon to foster such rights, but also civic society – through its agencies and organisations, including educational institutions, religious entities, labour unions, peer groups, gender equality organisations, and other non-governmental and community-based organisations. The preparation for elections includes a process of civic education for democracy.