PDM candidates win court challenge

POLITICAL parties are not allowed to simply change their list of candidates nominated to be elected to the National Assembly after an election, and before the candidates are sworn in as members of parliament, the Electoral Court ruled yesterday.

The Electoral Act also does not give the Electoral Commission of Namibia the power to amend a list of candidates nominated to be elected to the National Assembly after a national parliamentary election has taken place.

These were some of the conclusions reached by deputy judge president Hosea Angula and judges Shafimana Ueitele and Thomas Masuku in a judgement on two Popular Democratic Movement members’ challenge of their party’s decision to change its list of parliamentary candidates after the 2019 National Assembly elections.

Reacting to the court’s decision, PDM leader McHenry Venaani said yesterday afternoon his party is going to appeal against the judgement.

“It is very unfortunate that this decision is political just to try to demystify the current Fishrot saga that is deepening in the country,” Venaani said.

“We have not read the judgement, but the preliminary facts that were put on the table shows us that this is not a legal argument,” he said.

In a joint decision by the three judges, the court reviewed and set aside the ECN’s declaration on 18 March of six PDM members’ election to the National Assembly, and declared that the swearing-in of the six as members of parliament was unconstitutional and unlawful, and therefore null and void.

The six affected PDM members are Esmeralda !Aebes, Johannes Martin, Kazeongere Tjeundo, Geoffrey Mwilima, Timotheus Shihumbu and Pieter Mostert.

The court further directed the chairperson of the ECN to announce that PDM members Charmaine Tjirare, Reggie Diergaardt, Mike Venaani, Frans Bertolini, Yvette Araes and Tjekupe Maximilliant Katjimune, who were on the party’s list of candidates at the time of the parliamentary election on 27 November last year, are duly elected members of the National Assembly.

Tjirare and fellow PDM National Assembly candidate Hidipo Hamata challenged the party’s decision to change its list of candidates for the National Assembly after the 2019 election, in which the PDM won 16 seats in the National Assembly.

With the change, Tjirare, Diergaardt, Mike Venaani, Bertolini, Araes and Katjimune were no longer among the 16 PDM candidates elected as National Assembly members, and were replaced by !Aebes, Martin, Tjeundo, Mwilima, Shihumbu and Mostert.

The court said in its judgement that the Electoral Act is the ECN’s sole source of power.

The commission should not have allowed itself to be pressured into adopting the position peddled by the PDM after the election, and as a result of caving in to the party’s pressure it lost its impartiality and independence, the court stated.

The court said the ECN was ill-advised to join the case filed by Tjirare and Hamata as a litigant and to make common cause with a political party in the process, “thereby sacrificing and compromising its independence and impartiality …”.

The judges reasoned that for a person to be elected as a member of the National Assembly, they must have been duly nominated as a candidate first.

Once a list of nominated candidates had been published in the Government Gazette before a National Assembly election, that list can, according to the Electoral Act, only be amended if a nominated candidate died, became incapacitated, was found not to qualify to be nominated as a candidate, or was expelled from the political party that nominated them, before they were declared duly elected as members of the National Assembly, the court noted.

The court also noted that the Republican Party, too, changed its list of candidates after the election and before the swearing-in of new members of parliament on 20 March this year.

The judges said the attention of the National Assembly’s speaker should be drawn to this.

Lawyer Norman Tjombe represented Tjirare and Hamata. The PDM’s case was argued by Ramon Maasdorp, while Sackey Akweenda and government attorney Matti Asino represented the ECN.