Constitutional crisis overshadows elections

By Eliaser Ndeyanale and Paulina Ndalikokule

A potential constitutional crisis looms over the upcoming elections as it emerged this week that most political parties fielded candidates for the National Assembly that are not eligible, given that the legislation that underpins the work of the Electoral Commission of Namibia (ECN) prohibits candidates that are public office-bearers or employed in the public sector.

The Constitution says: ‘No persons may become members of the National Assembly if they… are remunerated members of the National Council, Regional Councils or Local Authorities.’

The legal anomaly seemingly crept in with the 2014 amendment to the law, specifically Section 77 of the Electoral Act, read in relation to Articles 46 and 47 of the Constitution.

The legal opinion obtained by the ECN suggests that by that same measure, persons employed in the public sector or the abovementioned institutions “are also disqualified from candidature as a member of the National Assembly.”

Ironically, a number of parliamentarians who are now ineligible were in fact ones that passed the damaging electoral amendments into law in 2014, which have now come back to haunt them ahead of the make-or-break 2019 elections.

ECN chairperson Advocate Notemba Tjipueja this week strained the nerves of party leaders, who had recently submitted their list of nominee parliamentarians, when she warned them to comply with the Electoral Act of 2014, particularly Section 77.

In a letter on Tuesday, she informed them that the Act strictly prohibits nominees who are remunerated employees in the public service of Namibia, including those who are current members of the National Council, regional councils or local authorities from standing as a candidate for the National Assembly.

The anomaly was confirmed by South African senior counsel Advocate Geoff Budlender from the Cape Bar Society of Advocates and highly-regarded Namibian Advocate Dr. Sackey Akweenda when the ECN sought their legal opinion.

“We conclude that a court is likely to hold that in terms of Article 46 (1) (a) of the Constitution, the persons identified in Article 47 of the Constitution are not eligible for candidature as members of the National Assembly.

“These include persons who are remunerated members of the public service of Namibia and those who are members of the National Council, regional council[s] or local authorities,” Akweenda and Budlender contended.

“From this it follows [that] Section 77 (4) (a) of the Electoral Act similarly excludes such persons from nomination on a list of candidates for the National Assembly and that this exclusion is consistent with the Constitution,” they opined.

“We appreciate that this interpretation places such persons in the difficult position of having to decide whether to resign their positions in order to be candidates for the National Assembly. However, in our opinion that is the meaning of the Constitution,” they concluded.

Reacting to the news, Unam law professor Nico Horn said affected nominees should choose whether to resign from their current positions or to withdraw from the list of candidates.

He said this with candidates in view who are in vulnerable positions electorally, like Gobabis constituency Councillor Phillipus Katamelo (70th on the list) and Edward Wambo (number 98 on the list), whom he advised to rather withdraw as they could be unemployed if they do not withdraw before the election, as Swapo is not likely to secure that many seats.

He argued that National Council chairperson Magreth Mensah-Williams should also consider resigning her post in the National Council, as her chances of being voted to the National Assembly are high, given that she is a presidential nominee and higher up on the list.

“You can’t play double politics in Namibia. It will be interesting to see how it will unfold,” Horn said.

Some of the affected candidates told Confidente they would simply not comply with the law and would not resign from their current positions to make their candidature legal.

Oshakati Town Council CEO Werner Iita said he was not planning to resign as, in his view, the law does not apply to him. “I’m not a politician, I’m exclusive,” said Iita, who is at number 79 on Swapo’s list of candidates for the National Assembly.

Verna Sinimbo, a town councillor at Rundu who is at number 34 on Swapo’s list, preferred not to comment at this stage. Fillipus Katamelo, a member of the National Council, asked for a text message but also did not respond. Katamelo is a constituency councillor for Gobabis and is at number 79 on the Swapo Party list.

Veteran journalist Modestus Amutse, who is councillor for Oshikuku constituency (47th on the list) said he couldn’t discuss the issue as he was busy at the time.

Popular Democratic Movement secretary general Manuel Ngaringombe said that the party thinks what ECN is doing is not fair because it is limiting the rights of the civil servant.

“So how do you want a civil servant to be an active politician if they’re not supposed to take in full benefits that are there for them as politicians?”

He added that the party is in no agreement whether the affected members will be resigning from their position or not.

“I can’t give you that final say because we want justice to prevail; we want to wait on how ECN will respond because we want justice to prevail so I can’t give that final thing because we are standing by the law and by the interpretation.”