Mbumba’s 2024 election extension under attack in Supreme Court

President Nangolo Mbumba’s decision to extend voting in Namibia’s elections in November last year was squarely in the spotlight during the hearing of Independent Patriots for Change leader Panduleni Itula’s legal challenge of the presidential election in the Supreme Court yesterday.

The president did not have the power in terms of the Electoral Act to amend the original proclamation in which he announced the date of the elections, senior counsel Anton Katz, representing Itula, argued before five judges of the country’s top court.

For that reason alone, the proclamation in which Mbumba extended voting in the elections must fall, Katz argued.

Chief justice Peter Shivute, deputy chief justice Petrus Damaseb, appeal judges Sylvester Mainga and Hosea Angula, and acting judge of appeal Dave Smuts reserved their judgement at the end of the hearing yesterday afternoon.

The court expects to be able to hand down its judgement by 28 February, Shivute said.
Mbumba extended the elections, which were initially scheduled to take place from 07h00 to 21h00 on 27 November last year, in a proclamation issued on the evening of 28 November.

In his proclamation, Mbumba announced that he extended the elections from 21h00 on 27 November until 21h00 on 30 November.

The extension applied to only 36 polling station in the Khomas, Oshikoto, Oshana and Kunene regions.

According to Mbumba and the Electoral Commission of Namibia (ECN), those 36 polling stations were places where ECN officials had reported that some voters were not able to take part in the elections because ballot papers had run out.

Katz argued during the hearing that Mbumba could not extend voting in the elections after ballot stations countrywide closed at 21h00 on 27 November.

Once the ballot stations closed at that hour, the elections had come to an end, Katz argued, adding: “You can’t revive an election once it’s over.”
Katz also argued that on Mbumba’s own version before the court, what happened during the elections on 27 November “must be regarded as constitutionally problematical”, because an unknown number of voters were disenfranchised through ballot papers running out at some ballot stations and long delays caused by malfunctioning equipment used at ballot points.

Katz remarked: “Here we have an election which was invalid as a matter of principle.”

Itula is asking the court to declare the proclamation in which Mbumba extended the elections to be inconsistent with the Constitution and a part of the Electoral Act of 2014.

He is also asking the court to declare that polling in the presidential election was conducted in breach of the Constitution and part of the Electoral Act, to declare the outcome of the presidential election to be unlawful and invalid, and to set aside the election result.

In addition to that, Itula wants the court to direct the ECN to conduct a fresh presidential election before Mbumba’s term of office expires on 21 March.

The Landless People’s Movement (LPM) and its leader, Bernadus Swartbooi, are supporting Itula’s election challenge.

On behalf of the LPM, legal counsel Kameel Premhid argued that an extension of the voting timetable could be done only before voting started on election day, and that the president could not extend the election after polling stations had closed on 27 November.

Premhid further argued that Mbumba could not extend the election in only parts of Namibia.

Senior counsel Raymond Heathcote, representing the president, noted that Itula’s election challenge was not about allegations that irregularities, like voting by people not registered as voters, had taken place.

There is “absolutely nothing” indicating that the president could not extend voting, Heathcote argued.

The president’s exercise of his powers was “entirely appropriate”, he argued.

By extending the elections until 30 November, Mbumba did not take any rights away, Heathcote said.

On behalf of the ECN, Gerson Narib argued that the presidential election was conducted in compliance with principles set out in the Electoral Act, and any non-compliance with those principles did not affect the election result. Because of that, the court should not set aside the election, argued Narib.