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.
Well written Ndjodi. I still can’t wrap my head around unconstitutional yet legal results. Thank you for this piece.
Well written paper, its a pity that the people who claim to protect the rights of citizens are the denyer of of such right…
My sentiments exactly. How can a process be unconstitutional and the results valid? The court really erred in not nullify the 2019 elections.
It is really interesting how our justice system works. Justice doesn’t exist here. Thanks for enlightening us Ndjodi
It is not the mouse that is a thief, but it is the mousehole That is a thief.
Thanks very much for the explanation of the unconstitutional judgement. We will respect the constitution forever. But will not respect unconstitutional process to give us a constitutional elected president. It will not happen with this generation of radical youth.
We are denied justice. They cheated. I personally don’t have a problem if anyone can win elections fairly, just as ANYBODY else. Justice is totally denied and we will not rest until justice flow like a mighty stream.
2019 election was not free and fair. Due to the fact that they use EVM without a paper trail which is declared unconstitutional by the high Court. As electorate we are not valued because our concern are not taken seriously. Unconstitutional action producing a valid result?
The suprime court has failed the Namibian Nation at large and this indicates that the is no separation of power in the country and this administration has failed to uphold and defend the Constitution. The current president is un constitutional chosen as far as the process used was unconstitutional and not transparent in the history of this country. I wish I can write a book about this for the future generations to come and now about history. ????????
Does this Mean If Namibian traffic officers find me driving without a driving licence, they won’t give me a fine as long as I did not cause an accident? Why are we voting if the court can decide the winner…?
The said verdict subject our judiciary conduit for the question of its independence and legitimacy. How can an unconstitutional process produces a lawful Outcome/president? It is dismaying.
Very smart point of analysis. If this could melt in the grey stuff of our law gate keepers, would have haunted ant eventual succumb to the pressure of the academic mistake done.
It is indeed a dilemma to the Namibian people knowing that they are being led by a president who is elected illegally. I believe the Supreme Court could have done justice by nullifying the elections and let all start over according to the constitution
What about those MP’s and the Regional Councillors who has been elected with the same EVM’S.Are they also illegal or unconstitutional.The process of selective morality must also come to an end.
Thanks Ndjodi for this detailed and accessible analysis of the Namibian judgement.
I wonder how high is the risk that you warn against, that an unconstitutional election being validated become a precedent and lowers standards in the country (even regionally?) Would be interested to read how you see that happening.
I have a question regarding the conclusions, though. Isn’t it very classic (like 99% of the time) that the burden of proving that the flaw in the election process changed the result lies with the applicant, failing which the election results stand? Otherwise as soon as a doubt could be shed, the elections would be overturned, which is a pretty dramatic move, costly and potentially destabilising. I reflect on this and on the two exceptions of Kenya and Malawi in a blog published yesterday, I hope you find it useful:
All the best,
Martin Ronceray – ECDPM
It is nothing but monkey business when it comes to the Namibian judiciary. They are nothing but lap dogs for the illegitimate ruling party.
I would not take the legal approach in arguing for the Supreme Court’s decision here. Your points are valid as they pertain to your observations about the judgment and that should suffice. However, if all of us elect a president using a machine that does not verify results, and you bring a case in which you do not show how the results are not what they should have been, simply based on the fact that a safeguard the Constitution had directed to be included was omitted, can you then say that you are entitled to annul the election for having shown that it was conducted without the safeguard? Does it then follow that if a court finds that you are proper, but not sufficient and declines you relief were it finds you insufficient and grands your relief where it is satisfied you have been proper, that it has erred? This is no legal argument, just normal common-sense
an argument, about fairness. Based on this, I find that the decision was right and proper and the majority of the voters can live with this.
Fully agreed. I am still concern about if the ECN is capable to provide evidence that can show that who vote who for the recount.
But by so allowing the results to be, can a president in the day of taking an oarth of office come march 2020 still boldly say he will protect and defend the Naimibian constitution when he himself is a result of unconstitutional process?
There is a perception that the judiciary is captured by the executive and if we are genuine with ourselves we will agree that the system of the president appointing judges leaves a lot to be desired. To pronounce that the election was held against an unlawful process but not endorse the result of such a process is not only a denial of justice but undermines the intelligence of the citizens but destort the rule of law.
We are still concerned that access to information is not guaranteed in our Republic and such denial of justice is perpetuated by the conditions that prevail under such an environment.
Use of electronic voting machines has proved to be highly controversial in various jurisdictions. Secret ballot along with its verifiability to the satisfaction of all stakeholders is a sine qua non of a robust democracy. One hopes that the court may reconsider its approach in future cases.