Hopes by nine Namibian opposition parties to force an annulment of last year’s November election — which they said had been marred with systematic regularities — were dashed on Thursday when the High Court threw their case out for filing it 90 minutes after the deadline had passed on January 4.
The struggling opposition was dealt a further blow by the court when it was also awarded costs against them — expected to run into millions of rands.
On December 24, the loose coalition nominally led by Swapo breakaway party the Rally for Democracy won the first round in the election battle when they obtained a court order to inspect certain election materials.
What they found gave them enough reason to think the elections — which put President Hifikepunye Pohamba back in office for a second term — were flawed enough to have the results nullified and a new election called.
In terms of the Election Act, they had 10 days to file an application for annulment after the first legal victory. But the Electoral Commission of Namibia (ECN) only granted access to certain materials on the December 28, leaving them only the New Year’s Eve long weekend to prepare their case.
The opposition hoped evidence presented in about 200 affidavits and technical analyses compiled to show why it was improbable — if not impossible — to hold elections with a highly inflated voters’ roll (the ECN claimed to have registered 98% of all eligible voters) would sway the Bench.
The court heard two days of argument, including six hours of testimony, from the opposition’s Advocate Reinhardt Tötemeyer on dozens of irregularities discovered during their limited audit of the election materials. But the court ended up basing their judgement on the main technical objection, which was raised by the ECN’s Advocate Vincent Maleka that the opposition’s application for annulment was filed 90 minutes late and therefore was not properly before the court.
Court rules require that applications be filed no later than 3pm of any working day, but the application was only lodged with the registrar at 4.30pm on January 4.
Sources in the opposition team said the delay was because of the huge volume of documents that had to be printed and copied to the various involved parties, with the record running to over 1 600 pages.
Judge Collins Parker, with Judge President Petrus Damaseb concurring, ruled that no “exceptional circumstances” were proven by the opposition in the court that could justify the Registrar of the High Court relaxing this rule in accepting the filing.
Damaseb also dismissed pleas for extenuating circumstances, saying the opposition’s lawyers never made any attempt to approach the court for condonation in this respect.
The verdict was met with stunned silence from opposition members in court — and scenes of jubilation outside as Swapo supporters, watching the event broadcast live, took over Windhoek’s main streets in a belated election victory parade.
RDP president Hidipo Hamutenya, in remarks to the local press on Friday, described the verdict as “a joke” which could have a serious effect on future elections in Namibia. They were still considering their options, he said.
Technically, they could still appeal the verdict in the Supreme Court, but with the swearing-in of the new Cabinet Ministers due in three weeks’ time on March 21, they now will have to accept the election results that gave Swapo 75% of the vote.
Swapo now has won the past three elections (1999, 2004 and 2009) with more or less the same margin of a three-quarter majority.