Africa-Press – Namibia. THE Popular Democratic Movement (PDM) pulled off an act of electoral fraud against its supporters when the party’s leadership decided to change its list of National Assembly candidates after the 2019 election, a lawyer representing some PDM members charged in the Supreme Court on Friday.
Lawyer Norman Tjombe made this remark during the hearing of an appeal by the PDM against an Electoral Court decision in which the swearing-in of six PDM members as members of the National Assembly in March 2020 was declared unconstitutional and set aside.
The Electoral Court, consisting of three judges of the High Court, made that decision in July 2020, after PDM members Charmaine Tjirare and Hidipo Hamata challenged the party’s decision to change its list of National Assembly candidates following the 2019 election.
The court set aside the Electoral Commission of Namibia’s declaration that PDM members Esmeralda !Aebes, Johannes Martin, Kazeongere Tjeundo, Geoffrey Mwilima, Timotheus Shihumbu and Pieter Mostert had been elected as members of the National Assembly.
The six were not on the PDM’s list of candidates for the 2019 National Assembly election, but were placed on the list by the PDM after the election had been held and results showed the party had won 16 seats in the assembly.
The Electoral Court further directed that the ECN should instead declare PDM members Charmaine Tjirare, Reggie Diergaardt, Mike Venaani, Frans Bertolini, Yvette Araes and Tjekupe Maximilliant Katjimune – who had been on the party’s list of candidates for the 2019 National Assembly election – as duly elected members of the assembly.
The PDM appealed against the Electoral Court’s decision, and the ECN supported its appeal.
During the appeal hearing, senior counsel Jean Marais, representing the PDM, and Ishmael Semenya, representing the ECN, both argued that the Constitution and the Electoral Act allow political parties to change their candidates list in the time between an election and the swearing-in of new members of the National Assembly.
Marais argued that, in terms of the law, voters do not have a right to expect that candidates on the list of the political party of their choice would be appointed as members of the National Assembly after an election.
He also said “all roads lead to” the Constitution’s schedule 4, of which a part states that a political party qualifying for seats in the assembly “shall be free to choose in its own discretion which person to nominate as members of the National Assembly to fill the said seats”.
If voters do not like the candidates whom the political party which they voted for placed in parliament after an election, they can simply choose to vote for a different party with the next election, Marais said.
Marais and Semenya both also emphasised that in terms of the Constitution National Assembly members are elected on party lists and in accordance with the principles of proportional representation. According to that electoral set-up, it is a party, and not individual candidates on a party list, that qualifies for seats in the National Assembly if the party receives sufficient votes to have seats allocated to it, they argued.
Tjombe argued that political parties present their candidate lists to prospective voters to canvas their support in an election, and that voters then cast ballots for a specific party not merely because they support that party, but because they want the party’s nominated candidates to represent them in parliament.
The Constitution states that members of the National Assembly should be elected by registered voters and are not appointed, he said, adding that the six PDM members who were declared elected by the ECN had not been elected by voters, but had been chosen by the party’s leadership instead.
Tjombe argued it was electoral fraud for a party to present a list of candidates to voters before an election, and to then change that list by placing people who had not been nominated on it after an election.
It was akin to a car salesman making a deal to sell a top-range Mercedes-Benz to a buyer, only to then deliver a smaller and less powerful car once the vehicle had been paid for, he said.
Chief justice Peter Shivute, deputy chief justice Petrus Damaseb and acting judge of appeal Theo Frank reserved their judgement at the end of the hearing.
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