'Soon all opposition parties will be electro shocked through the ballot box and forever buried in a political scrap yard. It is a well known fact that all peace loving Namibian will always vote for SWAPO Party and SWAPO Party will win all 72 seats in the National Assembly and govern Namibia until the second coming of Jesus Christ, amen.' - Statement on Swapo Party website

WINDHOEK - Nine opposition parties in Namibia failed in an appeal to the High Court in Windhoek last week in a case in which they argued there had been extensive fraud and vote-rigging in last November's general election, which was won by the ruling Swapo party. Their appeal against the Electoral Commission of Namibia was set aside by Judges Petrus Damaseb and Collins Parker on the grounds that the submission had been made an hour and a half too late (see judgment).

The appellants argue that they have evidence that the Court Registrar had granted permission for a late submission on the due day and that the Judge Damaseb had been aware of this.

The opposition parties involved in the legal challenge against the ECN released a statement to the effect that the ruling came as a "shock and utmost surprise". They stated: "We were always under the impression that the judiciary, according to the Constitution is supposed to be an independent organ of the State, but after having studied the ruling by Judges Damaseb and Parker and after an in depth discussion with our legal team, we are convinced that justice was not done."

The decision of the Namibian High Court on Thursday 4th March to throw out the legal challenge of the opposition parties on technical grounds produced a sigh of relief on the part of the respondents: the Electoral Commission, the Government and the Swapo party, which has governed Namibia for the past 20 years. Judge President Damaseb ruled on Friday afternoon that the case would not to be heard. Catherine Sasman at the Court House reported that when the judges closed the door behind them, there were "ululating, fists shooting into the air, and wild embraces on the one hand, and disappointed shrugs on the other from those who lost the case".

In their statement the opposition parties vow to press on with the legal appeal. They accuse the Minister of Justice (and Swapo Secretary General) Pendukeni Ithana of  having launched a severe attack on the office of the registrar for having accepted the application. "At that time, the very same Judge Damaseb intervened and according to a document in our possession had explained that he was properly informed and that everything was in order," the opposition parties argue.

The Court's decision may have grounds in accepted legal procedure, but the summary suppression of the much-anticipated inquiry into these allegations of fraud and vote-rigging have not put out the fires of discontent.  One of the outstanding discrepancies relates to the size of the voters' roll. This was first reported by the ECN to have 1 181 835 entries, but then had shrunk to 820 305 within a week. One electoral officer committed suicide during the tense week of waiting for the results, confessing to his wife, as she reported, that he had been his involved in fraud.

When the results were eventually released on 4th December, six days after voting stopped, there was immediate disquiet and disbelief. According to the ECN, there was a reported turnout of 191% in Windhoek East, 189% voted at Okatyali and 175% at Ohangwena. Eight of the 13 parties disputed the results and prepared to go to court.

The National Society for Human Rights in Windhoek, which monitors political abuses, was banned early on from officially observing the elections by the ECN. Following an appeal to the High Court, it was then reinstated as an official observer. The NSHR was also not convinced by the results. There were reports that some people voted on others' behalf, some people were asked to reveal which party they belong to at the voting booths and apparently some voted twice.

An Election Observer, Arthur Götz, had expected to testify but was denied a chance when the matter was struck from the court roll on Thursday.

He retorted as follows with a mock-drama on the Namibia Election Watch Facebook group:

'Opposition: Your honour, the ECN did not remove dead persons from the voters' register, as required by the Act.

Judge: Your application was 90 minutes late. Good bye.

O: Sir, 16000 voter registration numbers are missing from the counterfoils, contrary to the Act.

J: Your application was 90 minutes late. Good bye.

O: But Sir, the counted votes were not published at the polling stations, as required by law.
J: Your application was 90 minutes late. Good bye.

O: Judge, we were not allowed into the verification centres. Actually, sir, verification centres are against the law.
J: Your application was 90 minutes late. Good bye.
O: Sir, more people voted than were registered.
J: Your application was 90 minutes late. Don't you get the message?'


'That's the so called JUSTICE in the so called DEMOCRATIC Namibia !' concluded Salonica Tjimune.

The costs

The Judge President also ordered the legal costs to be borne by the Opposition, estimated by journalist John Grobler at around N$6 million. Asked one curious observer: '"What I don't quite understand is why the opposition has to pay the legal fees for a technical error that caused the case to be thrown out. Isn't that the fault of their lawyers who filed late and missed the deadline? Therefore shouldn't they/the lawyers pay for the costs incurred." Whoever wins or loses the case, it is widely agreed that the public will have to bear the costs of the parties and that financially the lawyers have won.

Prof Bill Lindeke of the University of Namibia proposes that the opposition would be able to recoup their losses, implicitly by accepting the result: "After the opposition gains seats on the 21st, they will become eligible for public funding - less for DTA (Democratic Turnhalle Alliance), but more for RDP (Rally for Democracy Party) going forward. I agree that costs and the pending elections later this year will impact their decision. Comparing with Zuma's case in RSA, one can expect the issues to stick in the craw of the opposition whatever the court has said. Count on excessive banter in Parliament and on the campaign trail.

"Now public money is being used to pay expensive lawyers to defend what is naked injustice. This is unbelievable!" wrote Dr Abisai Sheyavali, a Swapo veteran, in The Namibian on Friday.

Responses to the ruling

The Presidential Affairs Minister, Albert Kawana, was reported by Die Republikein as leaving the court house in a jubilant mood on Thursday, telling reporters that "Court cases are like football matches, there has to be a winner and a loser." Shortly afterwards an SMS to all party supporters was sent out: "Comrades, justice has triumphed."

Gwen Lister, the Editor of The Namibian, tried to silence the cheers of celebration in Friday's edition: "The Swapo supporters may be ululating and celebrating the outcome of the court case by nine opposition parties challenging the recent elections, but they've rather missed the point! In some ways the dismissal of the case on a technicality has left the country with more questions than answers ..."

One enthusiastic blogger, Shivulitha Shilayi, wrote this inimical response on the Swapo party website: 'Gwen Lister is a lady in utter political denial. The lady has become so cynically confused such that she has lost any sense of rational political analyses. What if her coalition of losers did not lose the court case, was she not going to celebrate with her pen, writing big headlines and getting excited about democracy in Namibia, as if democracy now only means when her favourites were to win? This politically sick woman must be allowed to go to the nearest Hell. She has become too much predictably hateful of SWAPO and her thinking voters and supporters! She can take her so-called thinking losers with her there and may they all remain there rotting! Sies! Let people celebrate their victories!"

"Congrats to ECN and SWAPO for winning the court case... Now let's focus on nation building, shall we?!" enthused Valentina Rachel Nghiwete on the Election Watch group.

"And democracy is the loser - sad," replied Masupah WaKudumo, a Namibian student based in the US . He asks,  "Are we still a democratic country if results of a compromised election are determining the make-up of our parliament and governance of our country? The ECN admitted of certain shortcomings in the last election and the SADC team and NANGOF (Namibia Non-Governmental Organisations Forum) concluded that the results of the previous election were not free and fair. I'm confused trying to balance elements of our electoral process and democracy and keeping my trust and respect in our judiciary system. What is more important here - maintaining the integrity of our judiciary system or democracy?"

Hidipo Hamutenya, the leader of the emergent Rally for Democracy Party, questioned why the judges listened to detailed hearings on the merits of the case over the preceding two days, if they knew that it was technically inadmissible. He asked why the officers of the court had even accepted the case and placed it on the roll if it was not in compliance with the court rules.

The daily papers in Namibia are now cluttered with complaints and protests. There is a new temper to be sensed in the public mood: the practical criticism of the Swapo government which unfolded during the election has spilled over into a hatred for the one-sided state media which distorts the world so cruelly that it is hardly recognisable, and has now spread to the Electoral Commission, which is largely viewed as an agency of the government preventing change and by definition an extenuation of the Swapo party apparatus.

The dismissal of the case may have silenced the corridors of the Court house for the moment, but rather than contain the crisis, the order of the High Court has spread the contagion of public suspicion into the judiciary. The very integrity and legitimacy of parliamentary representation was the real issue at stake in the elections. The independence of the Electoral Commission became increasingly suspect and contested. This Court inquiry may have provided the opportunity to examine the issue and provide a remedy but its suppression of an inquiry may very well undermine the very foundations of the state and so usher in a Constitutional crisis. With this ruling of the High Court, a long shadow of doubt is cast over the independence of the Judiciary and with it the public resentment brings into question the legitimacy of the entire electoral process.

Namibia is a country in the midst of mortal crisis, with an unemployment rate above 50%, and a rapidly falling life expectancy (women's life expectancy has fallen from 63 to 49 years over the last two decades.) Therefore the only real gain for the revolutionary and progressive forces from this painful process, is that the inner workings of the state and the relations between the various parts stand more clearly exposed to the working man and woman, who must yet bear the day to day cost of so much politicking. The crisis forces us therefore to re-examine the meaning of democracy, and indeed, to substantially change our way of being.

Jade McClune is an independent researcher and a former research coordinator of the Archives of Anti-Colonial Resistance in Windhoek. He is the founding editor of The New Worker, a non-paper journal from Namibia (see here).

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