Namibia Elections under Dispute

The Elections to be held in Namibia tomorrow, 28 November 2014, already are under heavy dispute.

The population is divided about the use of Indian EVM's without a paper trail. Some trust what they told by the ECN, others have done their own due diligence and oppose the use of those EVM's and many have decided to not vote at all.

In an urgent court application to suspend the elections on Wednesday, 26 November, acting judge Miller dismissed the bid on technical grounds. The litigants appealed the decision, but in spite of the appeal having been lodged, the elections will take place. 

This is clearly in violation of the High Court Rules, as can be seen from this letter: 

"AFRICAN LABOUR & HUMAN RIGHTS CENTRE
P.o.Box 70328 Windhoek Tel/Facsimile: +264 61 228128 / +264812550869
Suite 206 Continental Bldg, Independence ave. Whk.

27 November 2014
The Director
Electoral Commission of Namibia
Windhoek
Namibia URGENT
Att: Dr Paul Isaak
Dear Sir
Re: Supreme Court of Namibia Case No. SA 91/2014 – Appeal against the judgment of Kobus Miller AJ in Re: August Maletzky and 3 others // Electoral Commission of Namibia and 17 others.
Above matter refers.
Thank you for taking the time to peruse the content of this urgent letter.
We respectfully draw your attention to to the provisions of the rules of the High Court of Namibia in relation to the appeal pending before the Supreme Court of Namibia.
Rule 121 (2) of the rules of the High Court of Namibia suspends the order granted by Kobus Miller AJ , on the 26 November 2014, unless the court, ie the High Court of Namibia on application of a party directs otherwise.
Furthermore, I respectfully alert you to the provisions of rule 121(3) of the rules of the High Court, which provides that should you wish to continue with elections you must enter into ‘ such security de restituendo' as the parties may agree or the Registrar of the High Court may direct. The latter provision is repeated in Rule 8(1) of the rules of the Supreme Court.
In those circumstances, your decision to proceed with the elections would be a violation of the above mentioned rules of the High Court, the law of general application and the Constitution of Namibia, and are likely to cast profound aspersions on the legitimacy of the elections and any subsequent government.
Of course, we are acutely aware of the requirment to pay security in respect of the appeal filed, however such payment is not immediate, and only becomes payable before lodging with the registrar of the Supreme Court copies of the record of the proceedings in the court aqua . Refer to rule 8(2) of the rules of the Supreme Court of Namibia.
For ease of reference The Rules dealing with a Civil appeal to the Supreme Court are reproduced below.
Applicable High Court Rules:
Civil Appeal to Supreme Court
“121. (1)Notice of an appeal to the Supreme Court against a judgment or order of the court must be filed in accordance with the Rules of the Supreme Court.
(2)Where an appeal to the Supreme Court has been noted the operation and execution of the order in question is suspended pending the decision of such appeal, unless the court which gave the order on the application of a party directs otherwise.
(3)If the order referred to in subrule (2) is carried into execution by order of the court the party requesting the execution must, before such execution, enter into such security de restiuendo as the parties may agree or in the absence of an agreement, the registrar may decide, for the restitution of any amount obtained on the execution, which amount includes capital and interest, if so ordered, and taxed costs and the registrar’s decision is final.
Applicable Supreme Court Rules:
Security in the case of appeals
“8. (1)If the judgment appealed from is carried into execution by direction of the court appealed from, the party requesting execution shall before such execution, enter into good and sufficient security de restituendo.;
(2)If the execution of a judgment is suspended pending appeal, the appellant shall, before lodging with the registrar copies of the record enter into good and sufficient security for the respondent’s costs of appeal.”
In those circumstances, your decision to proceed with the elections would be a violation of the above mentioned rules of the High Court, and the Supreme Court of Namibia and are likely to cast profound aspersions on the legitimacy of the elections and any subsequent government.
Should you nevertheless wish to proceed with the elections, you may only do so with leave of the high court.
We trust that you find the above in order and rely on your wisdom to respect the Constitution and the rule of law.
Yours faithfully
SIGNED
August Maletzky , Director- ALHRC
Cc:
The United Nations Representative in Namibia
The African Union Representative in Namibia
Election Observers in Namibia
The Ambassador of the USA
The Ambassador of the Federal Republic of Germany
The High Commissioner of the U.K
The High Commissioner of Botswana
The High Commissioner of RSA
The European Union Representative in Namibia
The Director of Namrights
Office of the Ombudsperson
All REGISTERED Political Parties in Namibia
The Media.

The writer of this letter has in the meantime received various death threats.

It thus follows that these elections tomorrow cannot be regarded as being in the interest of the population, nor as being free and fair.