Judge Dismisses Election Challenge – Opposition Appeal to Supreme Court

Judge Kobus Miller yesterday dismissed the urgent application that August Maletzky brought in the High Court to have the presidential and National Assembly elections postponed to February next year.

The judge dismissed the entire application.

Maletzky told the media straight after the court proceedings that he expected the judgment.

“Democracy is dead in Namibia since we do not have an impartial and independent judiciary,” he said.

He indicated that even before the judgment was delivered he had already drafted his notice of appeal.

Efforts to get confirmation from the Registrar of the Supreme Court did not materialise as officials were locked in meetings.

Assistant Deputy Registrar J Libana told New Era that the appeal had not yet been lodged when contacted at around 14:30.

However, it was later confirmed by Monica Nambelela the RDP youth leader who was with Maletzky in court that the appeal was filed with the Supreme Court late yesterday afternoon.

Judge Miller said the application to declare the Third Constitutional Amendment Act unconstitutional was not in line with the application and represents a different issue all together.

“I should pause here to mention that it was not apparent to me why the applicant chose to clamp different issues together,” the judge said.

He said although Maletzky did mention that he “married” the challenges it seems to him that it is an unhappy marriage punctuated by confusion.

Since the prayer solely deals with the Third Constitution Amendment, the judge said, he sees no reason why it cannot be afforded recourse in normal court proceedings and thus stood to be struck from the roll.

On the prayers raised in relation to Section 209 of the Electoral Act that gives powers to the line minister to affect the dates when a certain portion of the Electoral Act comes into operation he said he was unconvinced it is unconstitutional.

He said that there is a reason for the separation of powers as envisaged by the writers of the constitution.

On the issues concerning the EVMs the judge said no evidence was placed before him that the machines are unreliable.

In fact, the judge said, the respondents presented him with an affidavit of the manufacturer of the EVMs to prove its reliability.

He mentioned that the machines make provision for the re-counting of votes should any dispute arise.

He said the votes will be counted in the presence of party agents and election observers to ensure there is no rigging.

Judge Miller questioned the manner in which the application was brought at the “eleventh hour”.

“I was informed that the applicant was in possession of the statutes in October already,” he said and continued “there was no reason why the application could not be brought earlier so as not to put the court and the respondents under undue pressure.”

He said he granted the condonation request of the applicants for not following court rules because the matter is one of “national importance”.

“But it must be clearly understood that this is an exception and not to be seen as a precedent,” the judge emphasised.

On the EVMs he said that since the applicants did not put any facts before him on the reliability of the machines, he could only rely on the evidence that was before him.

And the only evidence before him was the affidavit of the Indian expert, Sreenivasa Rao, the judge said.

He said the applicants made broad allegations of rigging and fraud with no foundation on which to base these allegations.

“The facts placed before me do not indicate any issues of possible malfunction,” he told the court.

He further said that on the issues raised on the election such as ordering the ECN to run well organised elections as well as declaring the previous elections held with EVMs null and void, plus directing the ECN to stop using the EVMs without a paper trail cannot be entertained by him as he lacked jurisdiction.

In the end the judge dismissed the application with costs.

After the verdict, Professor Paul Isaak, the Director of Elections of the ECN said he was satisfied with the judgment.

“It is a fair judgment,” he said and continued that extensive consultations were held with all the parties and they knew well in aance that there would not be a paper trail.

The Minister of Presidential Affairs and Attorney-General Dr Albert Kawana said he was not surprised by the judgment.

“We expected that the judge will rule in our favour,” he said.

Source : New Era