On 5 February 2020, the judgement of Panduleni Itula, concerning the constitutionality of using electronic voting machines without a voter-verified audit trail (paperless EVMs), and thus the validity of the 2019 Presidential Elections, was delivered by the Namibian Supreme Court. Itula was much anticipated, particularly in a heavily contested political climate where the incumbent President Geingob was declared winner by garnering ~56% of the vote, a significant reduction from the ~87% in his first term in 2014. The runner-up was the first Applicant, Itula, who ran as an Independent Candidate with ~29%. These votes were collated using paperless EVMs.
Itula principally concerned section 97 of the Electoral Act, 2014. Section 97(1) and (2) provide for the use of EVMs, but these must be accompanied by paper trails in terms of sub-sections (3) and (4). When the Act became law in late 2014, all but the EVM paper trail provisions were brought into effect by the Minister. The Applicants thus challenged the Minister’s decision, and consequently ECN’s use of paperless EVMs in the 2019 Presidential Elections.
The Court found that the Minister’s selective implementation of section 97 to allow paperless EVMs was unconstitutional as it breached the separation of powers doctrine. In selectively implementing section 97, the Minister had acted outside his powers as the sub-provisions were composite and integrated. The Court also approvingly cited comparative jurisprudence from India and Germany on voting machines with paper trails as an ‘indispensable requirement of free and fair elections’ to ensure that voters can verify their choices, maintain the credibility of elections, and resolve electoral outcome disputes.
Having established paperless EVMs as unconstitutional, the Court turned to determine the appropriate relief. The central issue here was whether the unconstitutional use of paperless EVM should result in the nullification of the 2019 Presidential Elections. The Court, in exercising its constitutional remedial discretion, declined to nullify paperless EVM elections retrospectively. Instead, it granted only prospective relief in that future EVMs must be accompanied by a verifiable paper trail. The Court arrived at this conclusion by applying the ‘materiality test’ in section 115 of the Electoral Act, 2014, in terms of which an election outcome may only be set aside (a) if there exists a material mistake or non-compliance with election principles laid down in the Act, and (b) if such mistake or non-compliance affected the result of the election. The Court read these two requirements cumulatively.
An alternative reading of the test is disjunctive where qualitative and quantitative aspects are assessed independently. Such a disjunctive test to set aside an election is seen as recently as the February 2020 Malawian High Court decision that nullified the May 2019 Malawian Presidential Election. Whereas previous Namibian electoral challenges have largely turned on quantitative issues of irregularities, Itula is distinct as it relates to the Constitutional quality of paperless EVM elections. The absence of a paper trail has the effect of entirely undermining the ability to quantitatively evaluate and challenge an election’s outcome.
After the Applicants succeeded in qualitatively proving that the 2019 Presidential Elections were conducted unconstitutionally, the Court erred in also placing a quantitative burden to prove material electoral irregularities upon the Applicants. Paperless EVMs inherently undermine the election outcome challenger’s ability to collect evidence of electoral manipulation for judicial assessment; the issue is not strictly one of actual manipulation but the high risk of potential and opportunity for manipulation. Further, it is the ECN that is now constitutionally burdened by Article 94B (per the 2014 Third Constitutional Amendments) to realise the citizen’s fundamental right to vote in a manner that is, crucially, transparent. The Court also failed to consider why the ECN insisted on paperless EVMs, as opposed to the traditional paper ballots also permitted under the Electoral Act. Rather, the Court, in exercising its constitutional remedies discretion, unduly focused on factors concerning how the Applicants, particularly Itula, were insufficiently scrupulous in variously challenging paperless EVMs in the political, administrative and legal realms.
This approach is overly laboured. Once the Court vindicated the Applicants’ on paperless EVMs as unconstitutional, the matter ought to have centered all citizens’ inalienable right to elect their political representatives using a credible, verifiable and transparent voting mechanism. In declining to nullify the election, the Court rendered hollow its own assertion of the “indispensable” requirement of paper trails in electoral transparency, credibility and verifiability when exercising one’s right to vote. The non-negatable essential content of the right to vote was thus effectively negated (Article 22), with the Court’s acquiescence.
Itula also leaves Namibians in the anomalous position of being compelled to consume the fruits of a (potentially) poisonous tree: A President and legislative representatives who were elected using an unconstitutional mechanism, the results of which remain legal and valid. From a jurisprudential development perspective, Itula will be a setback to achieve the highest standards in complying with (indispensable) electoral principles and practices. The Court’s remedial ruling effectively compels voters to trust the election outcome while depriving them of the ability to verify that it factually reflected the will of the Namibian people.