ELECTORAL LAW – CHANGE OF ELECTION LIST AFTER ELECTIONS

ELECTORAL LAW – CHANGE OF ELECTION LIST AFTER ELECTIONS

The Popular Democratic Movement (PDM), a political party, supplied a list of candidates to the Electoral Commission of Namibia (the ECN). ECN objected to some candidates and PDM replaced them with new members who were not disqualified. This new list was then published in the Gazette. After elections, PDM became entitled to appoint 16 members to the National Assembly.  PDM then reverted to their original election list which it provided to ECN for the purpose of the publication of the results of the election of the newly elected members of the National Assembly, thus ignoring the new Gazetted list. Some candidates on the gazetted list approached the Electoral Court on an urgent basis to compel PDM to adhere to the list published by the ECN.

In the meantime, the swearing-in ceremony went ahead, and the urgent application was amended to also include a declaratory order to the effect that the gazetted list had to be adhered to and that the swearing-in of the specific members (who had to be removed from the initial list) was ‘unconstitutional, unlawful and therefore null and void’. PDM and ECN opposed the application contending that Schedule 4 of the Namibian Constitution allows a political party the freedom to ‘choose in its own discretion which persons to nominate as members of the National Assembly to fill the said seats’. The Electoral Court granted the relief sought by the candidates.

On appeal, FRANK AJA (SHIVUTE CJ and DAMASEB DCJ concurring) dismissed the appeal with costs, holding inter alia, that:

1. Political parties are free to nominate anyone who is not disqualified from becoming a member of the National Assembly by Art 46 of the Constitution for an appointment to the National Assembly and this list of nominees must be finalised a day prior to the polling as effect will have to be given to the appointment of members to the National Assembly once the results of the election are announced.
2. PDM was not entitled to change their election list subsequent to the elections.
3. insofar as the invalidly appointed members participated in the work of the National Assembly the effect of this participation, insofar as it concerns the internal procedures of the National Assembly, is of no concern to the court and it is only if the effect is such that the National Assembly acted unconstitutionally or contrary to some Act binding on it that a court will be entitled to interfere

Popular Democratic Movement v Chairperson of the Electoral Commission of Namibia NASC 30 May 2022