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Lax Scripta – Jurisdiction of the Electoral Court

Independent Patriots for Change vs Namibia Electoral Commission (EC 1/2024) (2024) NAHCMD 391 (July 19, 2024)

Facts

At the stakeholder meetings, the applicant had expressed his view that the fact that one person was nominated for both the Presidency and the National Assembly was not in accordance with the constitutional principle of separation of powers. As a result, the Electoral Commission of Namibia (ECN) requested the applicant to submit written submissions, setting out his view on the dual nomination. The applicant submitted his written submissions to the ECN. After receiving the applicant’s written submissions, the ECN informed him in writing that due to the complex nature of the issue, it had requested the Attorney General for a legal opinion. After receiving the opinion and after consultation by the applicant, the ECN informed him that “upon reflection, it is clear that the legal advice is a confidential communication between the Attorney General and the ECN, and it would not share its content with any third party.”

The applicant then addressed a letter to the ECN, requesting that the minutes of the meeting be made available to him, as well as the resolution adopted by the ECN not to make the legal opinion available to the applicant. The ECN did not accede to this request. The applicant then filed this application, in which he requests an order for the review and annulment of the decision of the ECN not to make the legal opinion on dual candidacy available to the applicant; a declaration that this decision of the ECN is contrary to the rights of the applicant guaranteed by article 18 of the Constitution; and an order for the ECN to make the legal opinion available to the applicant.

The ECN opposed the application and raised four questions of law in limine: first, that the Electoral Court lacks jurisdiction; second, that the declarant of the founding affidavit lacks the authority to initiate and process the application; third, that the privileged communication between him and the Attorney General cannot be reviewed; and fourth, that there has been an excessive delay on the part of the applicant in submitting the application.

When the matter was called up for hearing, the court informed the parties that it would first consider the point in limine whether it lacked jurisdiction to decide on the matter.

Affairs

Whether the decision of the ECN not to make the legal opinion available to the applicant constitutes an “electoral matter” within the meaning of Article 168(1)(my) of the Law. The phrase “electoral question” has not been defined in the Law.

Discussion

““election” means an election of the President, of the members of the National Assembly, of any member of a regional council or of a local authority council held under this Act, as the context requires; “application for election” means:

(to)in relation to a pre-election matter, a complaint about any conduct that contravenes this Act; or

(b) in relation to a post-election matter, a complaint about any conduct that contravenes this Act, and which is not construed as an application in terms of civil proceedings before a court; (emphasis added for emphasis); “post-election” means the period during and after polling day; “pre-election” means the period before polling day;

(29) The definition of what constitutes an “election” is clear and self-explanatory. What constitutes an “election request” in terms of the Act may be an election request made before the day of the poll (pre-election), or a request made after the election (post-election). Such a request must be a “complaint” about the infringement of the provisions of the Act. The request must not be capable of being construed as a request in terms of civil proceedings. (30) It is public knowledge, and this court is entitled to take judicial notice of it, that the presidential and National Assembly elections are scheduled for November 2024, and that the date of the poll has not yet been announced. Mr. Conradie is therefore correct in stating that we are dealing with a pre-election issue. (31) However, section 162(2) of the Act provides that all matters arising before election day or the referendum shall be heard by an electoral tribunal, and all appeals against the decisions of the tribunal shall be heard by the Electoral Tribunal. It follows, therefore, that on a correct interpretation of section 162(2), even if the applicant were correct in his contention that the issue in question was that of the nomination of a dual candidate, this tribunal would not have jurisdiction on the ground that it is a pre-election issue. (32) In the event that the interpretative conclusion reached above is incorrect, the tribunal is required to apply what has now become a well-established approach in law, namely, that the jurisdiction of the tribunal is determined by reference to the pleadings, in particular the relief sought by the applicant. In motion proceedings, affidavits constitute both the pleadings and evidence. (33) The principal relief sought in the notice of motion is to review and set aside the ECN’s decision not to make the legal opinion available to the applicant. The purpose of the application is, inter alia, to order the ECN to disclose the content of the opinion requested from the Attorney General’s office, which deals with matters of the electoral process. (34) The ECN denies that the issue for the court to determine is that of dual candidacy, but rather is whether the ECN’s decision to refuse to share the legal opinion with the applicant is an electoral issue. The basis on which the ECN’s refusal is based is the assertion of its right to attorney/client privilege in relation to the legal opinion. (35) I agree with Judge Sibeya when he said in Tjeundo that, when analysing the pleadings in an attempt to resolve the jurisdictional challenge, it is not for the court to say that the facts alleged by the applicant would also support another claim in another court. The Legislature created the Electoral Tribunal as a specialised court to deal with electoral matters. In my view, the ECN’s refusal to share the legal opinion sought by the applicant is not an electoral matter within the meaning of section 168(1)(e), and does not qualify as an “electoral matter” or part of “an electoral process”. It follows that this court lacks jurisdiction to decide whether the ECN is entitled, as a matter of law, to refuse to share its legal opinion with the applicant. This is a matter which falls outside the scope of the powers conferred on this court by law.

Costs

(36) Although the ECN initially requested an award of costs, during oral argument Mr Akweenda rightly informed the court that the defendant was no longer insisting on its application for an award of costs. Accordingly, the clause in section 171 of the Act will not apply, as there is no evidence that the plaintiff acted frivolously or recklessly in initiating these proceedings.

Determination

Held that Section 162(2) of the Act provides that all matters arising before election day or the referendum shall be decided by an electoral tribunal, and all appeals against the tribunal’s decisions shall be heard by the Electoral Tribunal. It follows from this provision that all pre-electoral matters, in the sense of those arising before election day, must be decided by the electoral tribunal and only appeals may be heard by the Electoral Tribunal.

Held that The ECN’s refusal to share the legal opinion that the applicant requested to be provided to him was not an electoral issue within the meaning of Article 168(1)(my), and does not qualify to be classified as an ‘electoral issue’ or ‘electoral process’.

Held that The Electoral Court lacked jurisdiction to decide on the question of whether the ECN had the right to refuse to share its legal opinion with the applicant.

Court order

The point of the law in limine The respondent’s claim that the Electoral Tribunal lacked jurisdiction to decide on the application was upheld. The application was removed from the electoral roll, with no judgment on costs being issued.

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