Understanding the Challenges to the 2024 Elections

As Namibia’s newly elected leaders prepare to take office, it is useful to have a clear understanding of the legal challenges to the 2024 election and the Supreme Court’s decision.

Who challenged the outcomes? 

The National Assembly election was challenged by the Independent Patriots for Change (IPC), joined by the Landless People’s Movement (LPM).

This case was opposed by the president of Namibia, the Electoral Commission of Namibia (ECN), the ECN’s chief electoral officer and the Swapo Party of Namibia.

The presidential election was challenged by the two presidential candidates who came second and third: IPC candidate Panduleni Itula and LPM candidate Bernadus Swartbooi along with his party.

This case was opposed by the same parties as the High Court case, along with Namibia’s attorney general and successful Swapo presidential candidate Netumbo Nandi-Ndaitwah. 

Why were there two court cases? 

The Electoral Act mandates the legal procedure, meaning the challenge to the National Assembly, had to be filed in the Electoral Court (a division of the High Court) while the challenge to the residential elections went straight to the higher level Supreme Court. 

Because the basis for both challenges was the same, the Electoral Court decided to await the Supreme Court’s ruling before moving forward.

When the Supreme Court challenge was unsuccessful, the IPC and the LPM withdrew the similar case in the Electoral Court. 

The extension of the election 

In both challenges, the crux of the dispute was the proclamation issued by president Nangolo Mbumba to extend the voting period from the original election day on 27 November 2024 for two additional days, to 29 and 30 November, at 36 of the 4 699 polling stations. 

A total of 1 089 777 voters cast their ballots on the original election day, while an additional 9 805 people voted on the two extra days.

The challengers claimed this extension of voting was illegal and compromised the integrity of the election process.

They sought to have the elections set aside and held afresh. 

Did the president have the power to extend the voting period? 

The challengers argued that the Electoral Act provides no legal authority to alter the polling date once it has been set by the president. 

But the court accepted the counter-argument that the source of the president’s power to amend the polling dates comes from the intersection of three legal provisions.

Firstly, this is an implied power based on the need to give effect to citizens’ fundamental right to vote under Article 17 of the Namibian Constitution. 

Secondly, it stems from a provision in the Electoral Act which says anyone interpreting or applying the act must do so in a manner that “gives effect to the rights, freedoms and responsibilities contained in the Namibian Constitution”. 

Thirdly, it is authorised by the ‘Interpretation of Laws Proclamation’ which provides guidance on the interpretation of all Namibian statutes.

It states that unless a law says something to the contrary, the exercise of a power is not limited to a single occurrence but may take place “from time to time as occasion requires”. 

The court interpreted this to mean that any official with administrative powers may reconsider a decision if circumstances have changed – as long as this is in the public interest and does not take away any rights created by the previous decision. 

In the case of the 2024 election, the circumstances required action to extend polling so that ballot paper shortages did not deprive anyone of the right to vote. 

Was it permissible to extend voting only at certain polling stations?

Another key dispute was whether the extension was discriminatory because it applied only to a few polling stations.

The challengers asserted that the extended voting was limited to Swapo strongholds, thus skewing the electoral outcome in favour of the ruling party. 

The ECN justified the selective extension on the grounds that the 36 polling stations in question were the only ones affected by unresolved ballot paper shortages, while logistical problems at all the other polling stations were addressed so that no voter in the queue was ultimately turned away. 

Because the challengers did not present any contrary evidence, the court found that extending voting at the selected 36 polling stations was not discriminatory because it was based on the legitimate objective of ensuring that no voter was deprived of the right to vote.

Other issues

The court stated that the challengers had not presented evidence of any other irregularities, noting that there is a very high bar in the Electoral Act for overturning an election.

No election can be set aside because of any mistake or non-compliance with the law unless there is evidence the irregularities affected the election results.

Did the ECN fail to engage in proper planning? 

The Supreme Court said no.

It acknowledged problems such as long queues, the failure of mobile teams to arrive at certain mobile polling stations, overheating of electronic voter authentication machines, dead batteries in equipment used to check invisible ink on voters’ fingers, shortages of ballot papers and overflowing ballot boxes – meaning some voters had to spend hours standing in lines in scorching summer heat without food, water or ablution facilities.

The court noted that this understandably led to “a great deal of voter frustration with the electoral process”.

While there “might well have been some incompetence on the part of officials of the ECN”, no evidence of specific failings was provided. 

On the contrary, the court found that the key cause of problems at the polls was “the legal framework governing elections in Namibia”.

Specifically since the law permits voters to vote at any polling station – and not necessarily in the constituency where they registered – it was impossible for the ECN to have anticipated how many voters would turn up at a particular station and to distribute ballot papers accordingly.

This suggests there is a need to re-visit the Electoral Act before the next national election.  

The final outcome 

Although the 2024 election did not run smoothly, it is testament to the strength of Namibian democracy and its commitment to the constitutional framework that the Supreme Court’s finding has been accepted, paving the way for a peaceful transition in government.  

• Dianne Hubbard is a legal consultant with many years experience in public interest law.