On November 27, Namibians will, for the 7th time since independence and multi-party democracy, go to the polls in Presidential and National Assembly elections. This time, Electronic Voting Machines (EVMs) will be used to cast votes. While EVMs were first used without a paper trail in the 2014 general election, there has been constant political actor, civil society and public discontent and mistrust around them.
Yesterday, the Electoral Tribunal delivered judgment in Itula v Electoral Commission of Namibia (ECN) challenging the use of EVMs. The challenge relates to the alleged manipulability of EVMs when used without a paper trail to confirm the validity of a cast vote. The applicant, Dr Itula, sought to compel the ECN to use EVMs only with a paper trail, to deploy technicians to operate EVMs at all polling stations, or to revert to paper ballots for voting.
The ECN maintains that EVMs cannot be manipulated. Fears have been exacerbated by the ECN’s failure to ensure that EVMs are kept safe and secure. This is epitomised in the widely reported incident of ECN loaning the ruling party—which is also contesting the general election—for its own internal electoral processes in 2017. Some EVMs were lost after they allegedly fell off a vehicle trailer while being transported by ruling party officials. When the incident became public in mid-2019, the ECN claimed that it reported the loss to the Namibian Police. The Head of Police has since stated that no such case was opened at the time. This has cast doubt upon the circumstances of the loss of EVMs, and ECN’s transparency and impartiality.
The Tribunal dismissed the claim after finding that the matter was neither urgent, and nor did it have jurisdiction to adjudicate the case. It nevertheless also considered some of the merits, finding that the law did not require a paper trail to accompany EVMs.
On urgency, the Tribunal decided that the applicant approached it at effectively the 11th hour of elections, and noted the disruptiveness to the conduct of elections. However, while the applicant could have challenged the use of EVMs earlier, the Tribunal’s approach to urgency viewed in isolation from the serious allegations of EVMs compromising the integrity of elections, is problematic. Urgency should not have been assessed only on the basis of the Applicant’s circumstances, but the grave risk that EVMs leave room for electoral malpractice. Due weight should have been given to the fact that it is in the interest of all Namibians to have the EVM issue heard urgently on merits prior to polling day. This follows the Supreme Court’s approach in the 2010 electoral challenge, where it stated that determining election applications on an ‘semi-urgent basis’ is in the interest of the litigants and the public at large.
The Tribunal also found that it had no jurisdiction to hear and adjudicate the matter. Rather, the Electoral Court created under the Electoral Act, 2014 as a division of the High Court, was the appropriate forum. Arguably, however, the Tribunal materially failed to heed its own jurisdiction set out under section 162(1)(d) of the Act: it has jurisdiction over matters concerning any election application or any other alleged prescribed electoral irregularity in the context of election applications arising before polling day. Both the Tribunal and Electoral Court could therefore exercise jurisdiction over the applicant’s claims.
The fact that issues with EVMs have not been fully assessed on the merits before the polls leaves a cloud of doubt hovering over the election. Namibians should have full confidence that their collective democratic choice will be accurately reflected. The ECN’s legalistic approach to EVMs fails to appreciate that public legitimacy around election outcomes is just as important as strict legal compliance. EVMs risk eroding the election’s legitimacy.
Election-related challenges since Namibian independence have often been consumed by court procedure and technicalities of law. Although not unimportant, allowing these to impair the adjudication of electoral disputes on the merits is unhelpful in the context of Namibia’s growing democracy. In this context, the adverse legal costs order against the Applicant by the Tribunal based on an under-substantiated finding of ‘vexatious and frivolous’ action (section 166) is also regrettable. This may result in an unhealthy chilling effect in bringing electoral related disputes before courts; Namibia’s democracy should incentivise the judicial resolution of election disputes as far as possible.
Although an appeal is pending against the Tribunal’s decision, EVMs are set to decide what promises to be the most seminal general elections since independence in 1990.