Five take Swapo for one last dance in court over congress

FIVE members of Swapo are preparing an urgent application to bring before the High Court in which they are challenging a decision to hold an extraordinary congress next year.

The five, who constitute a faction of the ruling party disgruntled with a decision to endorse the candidature of Netumbo Nandi-Ndaitwah ahead of the November elections, are Reinhold Shipwikineni, Petrus Shituula, Joshua Martins, Erich Shivute and Aina Angula.

They have listed the Swapo party and Nandi-Ndaitwah as the first and second respondents, respectively.

According to the urgent court application prepared by Metcalfe Beukes Attorneys, Swapo stands accused of being in breach of its constitution, especially Article 15 (9).

The article states as follows: “In the event the president is unable to permanently perform his or her duties or to carry out his or her functions for whatever reason, an extraordinary congress shall be called by the central committee within three months of the vacancy occurring to elect a new president, unless such vacancy occurs six months prior to the ordinary congress. In such an event, the vice president shall exercise all the powers, duties and functions of the president pending the election of the president at the ordinary congress”.

In their submissions to the High Court, the five state that the position of the Swapo president has been vacant since president Hage Geingob’s death.

Geingob died on 4 February after a cancer diagnosis disclosure.

“Swapo, acting through its central committee, announced that the extraordinary congress contemplated in Article 15 (9) is scheduled to take place before 4 May 2024 to elect a new president to complete the unexpired term of the late Geingob,” the five say.

Swapo has, in the meantime, planned its congress for 19 April 2025.

The applicants are seeking a declarator to the effect that this announcement is in conflict with the provisions of Article 15 (9).
The applicants want the notice issued by Swapo to be set aside.

They also want an order directing Swapo, through its central committee, to convene an extraordinary congress within 30 days of the order.

“I learned of the announcement through the news media on 11 March. I expected the central committee and Swapo to recognise that the announcement was in conflict with the provisions of Article 15 (9) and that, following submissions made to it, the decision would be retracted. However, nothing of the sort happened,” Shipwikineni says in court papers.

Swapo has been represented by Murorua Kurtz Kasper Inc on the matter.

In a letter dated 3 May, addressed to lawyer Richard Metcalf, the lawyers said the decision made by the Swapo central committee was irreversible, extant and in accordance with the law.

“Accordingly, your client’s ill-conceived and belated demand is hereby rejected with the contempt it deserves. One of your clients, Mr Shipwikineni, has been demanding an extraordinary congress and disputing the legitimacy of our client’s potential candidate for more than a year. In fact, he has been threatening litigation during the same period. He will no doubt be settled with a challenge of inordinate delay to institute the threatened litigation,” said Swapo’s legal counsel.

TOO LITTLE TOO LATE

Political analyst Ndumba Kamwanyah says the legal challenge brought by the Swapo-five maybe too little too late.

He says Swapo has already consolidated itself around the candidature of Nandi-Ndaitwah and that any court challenge will be treated as a nuisance.

“It is a nuisance for the party, especially as we are headed to the elections in a few months. It is a distraction. They are doing this to distract the party from focusing on issues that it is supposed to address,” Kamwanyah says.

The Swapo party, through Sisa Namandje & Co. Inc, has said they will demand security in the amount of half a million Namibia dollars, should it be taken to court.

This is in line with Rule 59 of the High Court.

“This has become absolutely necessary, given that your client, Mr Shipwikineni, recently, when faced with litigation by a person against whom he made defamatory statements, went public, seeking funds to defend such litigation,” said Swapo’s counsel.

Metcalfe has said the matter is set down for 10 July 2024, if it is not opposed.