Election Application – future challenges - by Carola Engelbrecht
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05 Mar 2010
The recent Election Application brought before the High Court of Namibia has put our electoral processes under the spotlight. Namibians acro...
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The recent Election Application brought before the High Court of Namibia has put our electoral processes under the spotlight. Namibians across the nation have been commenting, questioning, vilifying or defending the action. Many compatriots are just watching – not fully understanding what the fuss is all about.
During a conversation at the High Court on Tuesday, a journalist prompted me to write this opinion piece. I will restrict myself to focussing on only THREE aspects which struck me as challenges in the conduct of credible elections in Namibia:
1) The Legal Framework for Elections in Namibia;
2) The Voters Register and the Tendered Vote System; and,
3) The Purpose of the various Results Centres
1) The Legal Framework for Elections in Namibia
As far as Presidential and National Assembly elections are concerned two legal instruments apply: The Namibian Constitution and the Electoral Act, Act 24 of 1992.
A huge challenge is the situation, that Parliament is the lawmaker, while the Electoral Commission is the implementer of the electoral laws in which it has no final say. Laws do generally not spell out all the technical details, but provide the legal framework within which the implementer must operate. In order to provide clarity to the implementer and other stakeholders, regulations (by-laws) are usually issued. Unfortunately, to date no regulations have been promulgated to clarify the new stipulations contained in the Electoral Amendment Act of 2009, which was only enacted on August 14, 2009 – a bare three months ahead of the November 2009 elections. (Seagoing personnel and voters abroad voted already on November 14!)
This unfortunate circumstance presented a formidable challenge to the Electoral Commission of Namibia (ECN) and trainers of ECN staff, party agents and local election observers.
There are no regulations to enlighten the individual role players tasked to make sense of the Amendment Act, especially when it comes to counting, announcing and posting results at polling stations, the activities at the Constituency Results Centres (the so-called ‘Verification Centres’) and the duties of returning officers at these centres.
2) The Voters Register and the Tendered Vote System
a) Transparency and Accountability
Unfortunately, the Electoral Act does not require the ECN to gazette the actual number of registered voters appearing on the final Voters Register. It only stipulates that the ECN must publish a notice in the Government Gazette to announce that the Voters Register is certified (whatever that means) and that it is available for public inspection at certain venues. This the ECN did on November 09, 2009.
The Electoral Act also requires from the ECN to provide every political party with a copy of the certified final Voters Register. However after November 09 the ECN provided political parties with different versions of the ‘final’ Voters Register, which had never happened in Namibia before. This prompted investigations, the results of which are part of the court application.
b) Reliability and Correctness
The importance of a reliable final Voters Register cannot be stressed enough. It is a crucial non-negotiable prerequisite for credible elections. Secondly - how can voter turnout be calculated correctly without a reasonably correct number of lawfully (and living) registered voters on record?
Certainly, it is not possible to have it 100 percent correct, but if the errors are of an unprecedented magnitude and if serious concerns in this respect raised by the public, contesting parties and international observers (from SADC) are met with nonchalance, it is impossible to instill trust in the Voters Register. Of course, dead people cannot vote, but if between 30 000 and 90 000 deceased were calculated to be on the Voters Register (depending on which of the multiple ‘final’ Voters Registers one uses) and up to 58 000 duplicate registrations identified during an intense scrutiny, while the official total number of votes cast is close to or even exceeds the number of registered voters (when the number of deceased voters and duplicate registrations is subtracted), then it raises more than eyebrows.
It is regrettable that the recent Okahandja by-election was not used to regain public confidence in its Voters Register. The magistrate’s court succeeded in removing 391 names of deceased voters from the Okahandja Constituency Voters Register in record time. Why did the ECN fail again?
Are the ECN and the respective registrars of deaths aware of the demand contained in Section 31 of the Electoral Act, which expressly stipulates that …
(…) any registrar of deaths or any other officer designated by him or her, shall not later than the fifteenth day of each month, transmit to the Director a return in which are furnished in respect of any person whose death during the preceding month was registered by or under any law governing the registration of deaths in Namibia, his or her last residential and postal address and such other particulars as may be determined by the Director after consultation with the said registrar or officer.
(Note: ‘Director’ meaning the Director of Elections)
The aforementioned paragraph clearly implies that the different registrars of deaths and the Directorate of Elections are expected to be in constant contact with each other with the aim to ceaselessly ‘clean up’ the Voters Register on a monthly basis a far as deceased voters are concerned.
c) Mixed System of Manual (Hard Copy/Printout) and Electronic Voters Registers (on computers)
What I call the ‘mixed system’ refers to the ECN’s practice of supplying some polling stations with an electronic Voters Register, while other polling stations (those without electricity – or for which the ECN does not have enough computers) are provided with a printed version of only a section of the Voters Register, namely only that section which contains the names of those voters who are registered in the constituency in which that particular polling station is situated.
This means that polling stations without electricity or computers – or both – have the Voters Register of only one constituency at their disposal. Voters casting tendered votes can therefore not be found on that section of the Voters Register and the ECN official has to complete a form which records all the details of such a voter. This not only potentially compromises the secrecy of the vote under certain circumstances, but who is going to verify the legality of such voter’s voter registration AFTER the election? And what good does it do if fraud is detected afterwards? The ballots are cast and cannot be identified or removed. This much quoted checks-and-balances provision is an illusion.
The combination of deficiencies in our electoral system is inviting election manipulation and nobody can convince me – and probably the majority of Namibians feels the same – that political parties and partisan voters can consistently resist temptation when the opportunity is in the weakness of the electoral law or in the procedure. The temptation is even bigger once the individual or political party has access to the state machinery.
3. The Purpose of the Various Centres
The electoral law requires counting, announcement and posting of results at polling stations (polling station results), but the results which are provided to the media and the rest of Namibia are constituency results, which are not posted, but announced at the VERIFICATION CENTRE and via the CENTRAL ELECTION RESULTS CENTRE (CERC) through the NBC, while the national results are announced at the (CERC), broadcast live by the NBC and published in the Government Gazette.
(i) Polling Station Results – the actual vote count results recorded and accounted for at a specific polling station
(Results of ORDINARY AND TENDERED VOTES added up together)
(ii) Constituency Results – all the results recorded on the respective polling station accounts as received from each polling station in a specific constituency added together
(iii) National Results – all the results received from all 107 constituencies recorded on the respective constituency accounts (based on the polling station results)
Based on the three abovementioned STAGES of calculating the election results of Presidential and National Assembly elections, it follows that certain CENTRES have to be established to facilitate each of the three stages, but the Electoral Act does not give these centres specific names. The Electoral Commission has initiated the establishment of the so-called CENTRAL ELECTION RESULTS CENTRE (CERC) in Windhoek in 2004.
Below is my attempt of sorting out the new situation:
(i) Polling Station Results Centres
Since the promulgation of the Electoral Amendment Act of 2009 the Returning Officer (Constituency) is no longer the official who is responsible for the ballot counting process. This duty has now been transferred upon the presiding officer (Polling Station).
Therefore the first Results Centre is the Polling Station (Stage 1), which I call the POLLING STATION RESULTS CENTRE to be consistent with the CERC. That is the place where all discrepancies and disputes are supposed to be solved and the only place and stage where re-counts are sanctioned by the Electoral Amendment Act of 2009 without a court order.
Nothing prevents the presiding officer from calling in help (in the person of the Returning Officer, or the Regional Coordinator or someone from the ECN Head Office) if he/she is confronted with challenges in his/her line of duty that he/she is not able to solve on his/her own. As long as the ballot boxes do not leave the polling station before the final results have been accepted (within reason) by all authorised party agents present.
The important principle behind counting at the polling station is the elimination of transporting ballot boxes containing uncounted and unrecorded votes. This manipulation prevention measure is nullified if a re-count takes place by the Returning Officer at the next stage, therefore the Act does not provide for it.
The Presiding Officer must count the tendered and the ordinary votes separately, must record them separately on ELECT forms and must re-seal the ballot papers for the two types of votes (tendered and ordinary) separately from each other.
It remains a mystery why, but the tendered and the ordinary votes are – despite the stipulation of them having to be kept separate from each other at all times – added together for each party (National Assembly votes) and each candidate (Presidential votes) to give the POLLING STATION RESULT per party and per candidate. It is probably for practical reasons; the paperwork would be even more otherwise.
(ii) Verification Centres/Constituency Results Centres
Since the responsibility of counting ballot papers has now been removed from the Returning Officer, he/she has been tasked by the 2009 Amendment Act to VERIFY what the Presiding Officer and his team have produced, and to calculate constituency results based on the polling station results. The Returning Officer executes his/her duties from a so-called VERIFICATION CENTRE, initially named CONSTITUENCY RESULTS CENTRES, of which there is only one per constituency, in other words countrywide there were 107 of these centres.
The term VERIFICATION CENTRE is not to be found in the Act, but verification requires a venue and so the name was created. There seems to be serious confusion what the term ‘verification’ means.
What is interesting to note is that the Amendment Act of 2009 distinguishes between a RETURN (which is a form) required from the Presiding Officer (polling station) and a REPORT required from the Returning Officer (‘Verification Centre’). It is even more interesting that the ONLY form the Returning Officer is required to check for accuracy is the so-called ELECT 16, which has to be completed, signed and dated by the Presiding Officer at his polling station.
For that purpose the Returning Officer must count the different ballot papers under the following categories: already counted, unused and spoilt.
The ELECT 16 demands additional information, like the serial numbers of ballot paper books and the total number of ballot papers received. The ELECT 16 must also be signed and dated by the Returning Officer at the Verification Centre, which is one of the polling stations in the constituency.
The Act is clear that ‘verification’ does not entail re-counting, but checking by way of counting. If the Returning Officer finds discrepancies between the figures (numbers) recorded on ELECT 16, s/he is supposed to write a REPORT about the discrepancies and deliver or transmit the REPORT to the Director of Elections.
(The purpose of the REPORT needs to be clarified, as well as whether an ELECT FORM qualifies as a REPORT.)
The Act clearly instructs the Returning Officer to announce the constituency results based on the vote count received from the Presiding Officer, irrespective of whether s/he found the data on the ELECT 16 to be correct or not and inform the Chairperson of the ECN of the Presidential results and the Director of the NA results.
(Sections 88(1) and 89(1) respectively, as amended by Section 28 of the Electoral Amendment Act of 2009)
(iii) Central Election Results Centre (CERC)
There is only one such centre for the whole of Namibia, which receives all the results from all 107 constituencies and publishes the CONSTITUENCY RESULTS. The CERC staff also calculates the FINAL NATIONAL RESULTS as well as the allocation of NA seats per party – all still based upon the original respective polling station results from each constituency. The Chairperson of the ECN announces the results of the Presidential election and the Director of Elections the NA election results and the allocation of seats.
• Carola Engelbrecht is a Trustee of the civil society organisation CATS (Citizens for an Accountable and Transparent Society), which is a member organisation of the NANGOF Trust Election Coalition (NTEC). She was accredited by the ECN as election observer during the November 2009 elections through NANGOF Trust, which had teamed up with the election observers of the SADC Council of NGOs.
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During a conversation at the High Court on Tuesday, a journalist prompted me to write this opinion piece. I will restrict myself to focussing on only THREE aspects which struck me as challenges in the conduct of credible elections in Namibia:
1) The Legal Framework for Elections in Namibia;
2) The Voters Register and the Tendered Vote System; and,
3) The Purpose of the various Results Centres
1) The Legal Framework for Elections in Namibia
As far as Presidential and National Assembly elections are concerned two legal instruments apply: The Namibian Constitution and the Electoral Act, Act 24 of 1992.
A huge challenge is the situation, that Parliament is the lawmaker, while the Electoral Commission is the implementer of the electoral laws in which it has no final say. Laws do generally not spell out all the technical details, but provide the legal framework within which the implementer must operate. In order to provide clarity to the implementer and other stakeholders, regulations (by-laws) are usually issued. Unfortunately, to date no regulations have been promulgated to clarify the new stipulations contained in the Electoral Amendment Act of 2009, which was only enacted on August 14, 2009 – a bare three months ahead of the November 2009 elections. (Seagoing personnel and voters abroad voted already on November 14!)
This unfortunate circumstance presented a formidable challenge to the Electoral Commission of Namibia (ECN) and trainers of ECN staff, party agents and local election observers.
There are no regulations to enlighten the individual role players tasked to make sense of the Amendment Act, especially when it comes to counting, announcing and posting results at polling stations, the activities at the Constituency Results Centres (the so-called ‘Verification Centres’) and the duties of returning officers at these centres.
2) The Voters Register and the Tendered Vote System
a) Transparency and Accountability
Unfortunately, the Electoral Act does not require the ECN to gazette the actual number of registered voters appearing on the final Voters Register. It only stipulates that the ECN must publish a notice in the Government Gazette to announce that the Voters Register is certified (whatever that means) and that it is available for public inspection at certain venues. This the ECN did on November 09, 2009.
The Electoral Act also requires from the ECN to provide every political party with a copy of the certified final Voters Register. However after November 09 the ECN provided political parties with different versions of the ‘final’ Voters Register, which had never happened in Namibia before. This prompted investigations, the results of which are part of the court application.
b) Reliability and Correctness
The importance of a reliable final Voters Register cannot be stressed enough. It is a crucial non-negotiable prerequisite for credible elections. Secondly - how can voter turnout be calculated correctly without a reasonably correct number of lawfully (and living) registered voters on record?
Certainly, it is not possible to have it 100 percent correct, but if the errors are of an unprecedented magnitude and if serious concerns in this respect raised by the public, contesting parties and international observers (from SADC) are met with nonchalance, it is impossible to instill trust in the Voters Register. Of course, dead people cannot vote, but if between 30 000 and 90 000 deceased were calculated to be on the Voters Register (depending on which of the multiple ‘final’ Voters Registers one uses) and up to 58 000 duplicate registrations identified during an intense scrutiny, while the official total number of votes cast is close to or even exceeds the number of registered voters (when the number of deceased voters and duplicate registrations is subtracted), then it raises more than eyebrows.
It is regrettable that the recent Okahandja by-election was not used to regain public confidence in its Voters Register. The magistrate’s court succeeded in removing 391 names of deceased voters from the Okahandja Constituency Voters Register in record time. Why did the ECN fail again?
Are the ECN and the respective registrars of deaths aware of the demand contained in Section 31 of the Electoral Act, which expressly stipulates that …
(…) any registrar of deaths or any other officer designated by him or her, shall not later than the fifteenth day of each month, transmit to the Director a return in which are furnished in respect of any person whose death during the preceding month was registered by or under any law governing the registration of deaths in Namibia, his or her last residential and postal address and such other particulars as may be determined by the Director after consultation with the said registrar or officer.
(Note: ‘Director’ meaning the Director of Elections)
The aforementioned paragraph clearly implies that the different registrars of deaths and the Directorate of Elections are expected to be in constant contact with each other with the aim to ceaselessly ‘clean up’ the Voters Register on a monthly basis a far as deceased voters are concerned.
c) Mixed System of Manual (Hard Copy/Printout) and Electronic Voters Registers (on computers)
What I call the ‘mixed system’ refers to the ECN’s practice of supplying some polling stations with an electronic Voters Register, while other polling stations (those without electricity – or for which the ECN does not have enough computers) are provided with a printed version of only a section of the Voters Register, namely only that section which contains the names of those voters who are registered in the constituency in which that particular polling station is situated.
This means that polling stations without electricity or computers – or both – have the Voters Register of only one constituency at their disposal. Voters casting tendered votes can therefore not be found on that section of the Voters Register and the ECN official has to complete a form which records all the details of such a voter. This not only potentially compromises the secrecy of the vote under certain circumstances, but who is going to verify the legality of such voter’s voter registration AFTER the election? And what good does it do if fraud is detected afterwards? The ballots are cast and cannot be identified or removed. This much quoted checks-and-balances provision is an illusion.
The combination of deficiencies in our electoral system is inviting election manipulation and nobody can convince me – and probably the majority of Namibians feels the same – that political parties and partisan voters can consistently resist temptation when the opportunity is in the weakness of the electoral law or in the procedure. The temptation is even bigger once the individual or political party has access to the state machinery.
3. The Purpose of the Various Centres
The electoral law requires counting, announcement and posting of results at polling stations (polling station results), but the results which are provided to the media and the rest of Namibia are constituency results, which are not posted, but announced at the VERIFICATION CENTRE and via the CENTRAL ELECTION RESULTS CENTRE (CERC) through the NBC, while the national results are announced at the (CERC), broadcast live by the NBC and published in the Government Gazette.
(i) Polling Station Results – the actual vote count results recorded and accounted for at a specific polling station
(Results of ORDINARY AND TENDERED VOTES added up together)
(ii) Constituency Results – all the results recorded on the respective polling station accounts as received from each polling station in a specific constituency added together
(iii) National Results – all the results received from all 107 constituencies recorded on the respective constituency accounts (based on the polling station results)
Based on the three abovementioned STAGES of calculating the election results of Presidential and National Assembly elections, it follows that certain CENTRES have to be established to facilitate each of the three stages, but the Electoral Act does not give these centres specific names. The Electoral Commission has initiated the establishment of the so-called CENTRAL ELECTION RESULTS CENTRE (CERC) in Windhoek in 2004.
Below is my attempt of sorting out the new situation:
(i) Polling Station Results Centres
Since the promulgation of the Electoral Amendment Act of 2009 the Returning Officer (Constituency) is no longer the official who is responsible for the ballot counting process. This duty has now been transferred upon the presiding officer (Polling Station).
Therefore the first Results Centre is the Polling Station (Stage 1), which I call the POLLING STATION RESULTS CENTRE to be consistent with the CERC. That is the place where all discrepancies and disputes are supposed to be solved and the only place and stage where re-counts are sanctioned by the Electoral Amendment Act of 2009 without a court order.
Nothing prevents the presiding officer from calling in help (in the person of the Returning Officer, or the Regional Coordinator or someone from the ECN Head Office) if he/she is confronted with challenges in his/her line of duty that he/she is not able to solve on his/her own. As long as the ballot boxes do not leave the polling station before the final results have been accepted (within reason) by all authorised party agents present.
The important principle behind counting at the polling station is the elimination of transporting ballot boxes containing uncounted and unrecorded votes. This manipulation prevention measure is nullified if a re-count takes place by the Returning Officer at the next stage, therefore the Act does not provide for it.
The Presiding Officer must count the tendered and the ordinary votes separately, must record them separately on ELECT forms and must re-seal the ballot papers for the two types of votes (tendered and ordinary) separately from each other.
It remains a mystery why, but the tendered and the ordinary votes are – despite the stipulation of them having to be kept separate from each other at all times – added together for each party (National Assembly votes) and each candidate (Presidential votes) to give the POLLING STATION RESULT per party and per candidate. It is probably for practical reasons; the paperwork would be even more otherwise.
(ii) Verification Centres/Constituency Results Centres
Since the responsibility of counting ballot papers has now been removed from the Returning Officer, he/she has been tasked by the 2009 Amendment Act to VERIFY what the Presiding Officer and his team have produced, and to calculate constituency results based on the polling station results. The Returning Officer executes his/her duties from a so-called VERIFICATION CENTRE, initially named CONSTITUENCY RESULTS CENTRES, of which there is only one per constituency, in other words countrywide there were 107 of these centres.
The term VERIFICATION CENTRE is not to be found in the Act, but verification requires a venue and so the name was created. There seems to be serious confusion what the term ‘verification’ means.
What is interesting to note is that the Amendment Act of 2009 distinguishes between a RETURN (which is a form) required from the Presiding Officer (polling station) and a REPORT required from the Returning Officer (‘Verification Centre’). It is even more interesting that the ONLY form the Returning Officer is required to check for accuracy is the so-called ELECT 16, which has to be completed, signed and dated by the Presiding Officer at his polling station.
For that purpose the Returning Officer must count the different ballot papers under the following categories: already counted, unused and spoilt.
The ELECT 16 demands additional information, like the serial numbers of ballot paper books and the total number of ballot papers received. The ELECT 16 must also be signed and dated by the Returning Officer at the Verification Centre, which is one of the polling stations in the constituency.
The Act is clear that ‘verification’ does not entail re-counting, but checking by way of counting. If the Returning Officer finds discrepancies between the figures (numbers) recorded on ELECT 16, s/he is supposed to write a REPORT about the discrepancies and deliver or transmit the REPORT to the Director of Elections.
(The purpose of the REPORT needs to be clarified, as well as whether an ELECT FORM qualifies as a REPORT.)
The Act clearly instructs the Returning Officer to announce the constituency results based on the vote count received from the Presiding Officer, irrespective of whether s/he found the data on the ELECT 16 to be correct or not and inform the Chairperson of the ECN of the Presidential results and the Director of the NA results.
(Sections 88(1) and 89(1) respectively, as amended by Section 28 of the Electoral Amendment Act of 2009)
(iii) Central Election Results Centre (CERC)
There is only one such centre for the whole of Namibia, which receives all the results from all 107 constituencies and publishes the CONSTITUENCY RESULTS. The CERC staff also calculates the FINAL NATIONAL RESULTS as well as the allocation of NA seats per party – all still based upon the original respective polling station results from each constituency. The Chairperson of the ECN announces the results of the Presidential election and the Director of Elections the NA election results and the allocation of seats.
• Carola Engelbrecht is a Trustee of the civil society organisation CATS (Citizens for an Accountable and Transparent Society), which is a member organisation of the NANGOF Trust Election Coalition (NTEC). She was accredited by the ECN as election observer during the November 2009 elections through NANGOF Trust, which had teamed up with the election observers of the SADC Council of NGOs.
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