By Dr Rihupisa Kandando
This open letter to the ECN seeks the wisdom of the ECN to convene a meeting with all the interested parties in the electoral system to discuss the following proposals of SWANU before the end of the year.
The Republic of Namibia in terms of Article 1(1) of the Namibian Constitution is a sovereign, secular, democratic and unitary State founded upon the principles of democracy, the rule of law and justice for all. In terms of Article 1(2) all powers shall vest in the people of Namibia who shall exercise their sovereignty through their democratic institutions of the State.
This submission from SWANU of Namibia is an attempt to highlight some obstacles and impediments that are inhibiting the efficient and smooth running of the electoral process in Namibia. It is a remedial action based on situation analysis, which if not arrested could definitely open the floodgates to daylight violations of democracy, electoral law, the rule of law and justice for all.
SWANU feels morally bound to remind political majorities to scrupulously respect political minorities on the basis of the well-established principle that, while the minority will enjoy their rights and have their say, ultimately the majority rules. It is hoped that the submission will add value to the nurturing, institutionalisation and consolidation of electoral democracy in Namibia.
1.1 Official Recognition of Political Parties and Groups
Political parties are instruments for the expression of the people’s will within representative forms of government. It is in this context that political activity and official recognition are accorded a constitutional status in terms of Article 17 and Section 39 of the Electoral Act (Act 24 of 1992 Amended) respectively.
The adoption of Article 17 of the Namibian Constitution allows citizens to participate in the conduct of public affairs, whether directly or through freely chosen representatives. Article 49 of the Namibian Constitution (and Schedule 4) permit proportional representation within our electoral system. These are legal instruments that testify important contributions parties can make to public affairs.
Despite these constitutional and statutory provisions, SWANU is perturbed by the current state of affairs such as denying state funding and other privileges, to unofficially de-recognise a registered political party such as SWANU that enjoys constitutional as well as statutory recognition in terms of Section 39 of the Electoral Act. The Rules or Procedure of Parliament that arbitrarily, selectively and unilaterally decided state funding to parties only represented in parliament without consultation with extra-parliamentary parties amounts to abrogation and suspension of SWANU’s right of existence as guaranteed under Article 17. The struggle between the parties gives meaning to elections, but it is not confined to them.
2. Pre-requisites for the levelling of playing field
It is SWANU’s understanding that agreement on the election pre-requisites has been reached on the basis of the Namibian Constitution. In accordance with the Namibian settlement proposal, as provided for in Security Council Resolution 435 (1978), and as further adopted under Article 49 and Schedule 4 of the Namibian Constitution, party lists and principles of proportional representation are standard norms in the Namibian election politics. In addition, Namibia employs the plurality method (also referred to as the “winner-takes-all” or “first-past-the-post” method) in the regional council elections.
Despite its deficiency, the Electoral Act (Act 24 of 1992 Amended) is the only viable document in addition to the Namibian Constitution that can guarantee levelling of the playing field.
2.1 Electoral Commission of Namibia
The Commission is charged and entrusted with the exclusive authority to direct, supervise and control in a fair and impartial manner any elections under the Electoral Act.
The Commission as the custodian and depository of the Electoral Act must rectify anything done and which is not consistent with the provisions of the Act. Discussions on issues such as election matters, airtime allocation to contesting political parties, state funding to political parties fall within their scope of operation.
2.2 Dissolution of the National Assembly
Contrary to the Namibian Constitution, the following are however happening:
In terms of either Articles 57(1) or 57(2) the National Assembly must be dissolved prior to the holding of an election. The publication of the election proclamation should be gazetted by the President of the Republic of Namibia in terms of Section 48 of the Electoral Act (Act No. 24 of 1992).
In terms of Article 58(a) Members of Parliament of the previous National Assembly have no legal and constitutional right to continue functioning after the first polling day. As such, they are not entitled to material benefit and privileges.
In terms of Article 58 (b) there is no constitutional justification why previous Members of Parliament continue with the business of the new National Assembly if by virtue of this provision are allowed up to and including the day immediately preceding the first polling day for the election held in pursuance of that dissolution.
The absence of the declaration or announcement as expected under abovementioned point 1 compromises the levelling of the playing field. The different unequal, skewed and differential airtime allocation to political parties on the basis of proportional representation in parliament is a classic example.
The condonation of this practice is reflected in the response of the former Rt Hon. Prime Minister Dr Theo-Ben Gurirab during an interview on this matter in October 2004 in the New Era newspaper.
In SWANU’s view this practice is a flagrant violation of the principle of democracy and justice and therefore cannot be justified on legal and constitutional grounds.
Therefore, in the spirit of democracy, the rule of law and justice for all, and in the interests of present and future succeeding generations, SWANU appeals to the wisdom of the Leader of Government business Rt Hon. Nahas Angula and the Speaker of the National Assembly Hon. Dr Theo-Ben Gurirab to revisit this inconclusive and unfinished issue.
2.3 Funding of Political Parties by State
The Electoral Act does not make any provision for state funding of political parties. The only provisions relating to finances are Section 46 and Section 98 that deal with the “Disclosure of foreign financing of political parties” and “Offences” respectively.
The National Assembly and Electoral Commission of Namibia must explain the legal basis on which this selective, arbitrary and unilateral state funding is based and why some officially registered political parties including SWANU are left out.
They must also explain why the rules and procedures of funding were discussed in the middle of the game (i.e. second Parliament) and not before contestation of the election.
SWANU of Namibia is of the opinion that the Resolution that effected state funding of parliamentary parties failed to take into account the existence of extra-parliamentary parties which are legally in existence and registered in terms of Section 39 of the Electoral Act, and which conform to the registration requirements in terms of the said Act.
For instance, in terms of the Act, all parties were and are required to submit 500 names of their members and who are eligible voters for any party to register. Any party that has obtained more than 500 voters in an election, therefore cannot and should not disqualify from being a political party in terms of state funding.
Besides that, this Resolution that governs party state funding has not put a ceiling on the success or failure rate before an election to justify disqualification of other parties from state funding.
Therefore, there was conflict of interests and all Namibian parliamentary parties at that time were only ‘loyal to their own bank accounts’ to such an extent that they were involved in an exercise to limit, restrict and curtail the basic human rights and freedoms as provided for under the Namibian constitution.
Our submission is therefore, that their action was in direct conflict with Article 17 of the Namibian Constitution.
Political parties that are represented in the National Assembly are being advantaged at the expense of extra-parliamentary parties on three accounts:
1. They receive NBC coverage through Parliamentary reporting.
2. They receive annual state funding on the basis of votes they obtained during an election. The funding is not based on seat(s) obtained, yet a political party such as SWANU that has obtained a share of the votes is not being given its share.
3. The absence of a public proclamation that is contemplated under Section 48 is being used to advance the interests of parliamentary parties in as far as the allocation of airtime to political parties is concerned.
2.4 Access to Media
Access to public media (and more specifically in the state print and electronic) must be guaranteed. The unequal allocation of airtime to political parties on the basis of parliamentary proportional representation is unacceptable because it violates the principles of equality, democracy and justice.
This position has also led SWANU to challenge the NBC and it conceded that its position to give different airtime allocation to contesting political parties is not based on the Namibia Communication Commission Act as it has previously misled the public, but on its discretion.
It is our sincere wish and hope that in the best interest of democracy the NBC will re-consider its position so that it can be consistent with Article 1(1), Article 21(1)(a) and Article 10 of the Namibian Constitution.
This SWANU position has the backing of the EISA Election Observer Mission.
In its recommendations contained in the Interim Statement issued on 18 November 2004, the EISA Election Observer Mission stated that access to media must be in conformity with Principles for Election Management, Monitoring and Observation in the SADC Region (PEMMO).
The EISA Election Observer Mission stated “we found that political parties’ access to the public media (both print and electronic) during elections tended to be skewed more in favour of the incumbent party and this situation inevitably raised concerns from other electoral stakeholders”.
In line with PEMMO guidelines, it proposed that Namibia abides by these principles to ensure that all parties enjoy equitable access to the public media.
2.5 Preliminary Arrangements and Imperatives for a successful electoral process
The cardinal principle that must be accepted by each and every Namibian is that the certification of an election to have been free and fair must take into account the pre-election, polling and post-election phases.
In fulfilling our obligation under point 5 of Schedule 4 of the Namibian Constitution that states “Provision shall be made by Act of Parliament for all parties participating in an election of members of the National Assembly to be represented at all material stages of the election process and to be afforded a reasonable opportunity for scrutinising the counting of the votes cast in such election” we have the following observations:
This being a constitutional (Schedule 4) and statutory (Section 52 of the Act) provisions, it is necessary, either for all parties to attend the polling monitoring (through state finances) or not to attend and leave this process in the hands of impartial and independent officials as listed under Sections 52 and 78 of the Electoral Act.
In that situation, reference to candidate under Section 78(c) should not be allowed if parties are not allowed.
Issues therefore are:
1. Financing of the political parties polling (election) agents and counting agents by the State;
2. Prescribed numbers of the above-mentioned agents to be widely known to avoid saturation of the election with agents of one political party because of its financial strength;
3. To discuss the essence and whether the presence of political party agents will contribute to the free and fairness of an election or not;
4. To discuss whether the presence of political party agents constitutes motions of no-confidence in the returning officers and polling agents duly appointed by the Director of Elections on behalf of the Commission or not;
5. To discuss whether returning officers and polling agents mostly drawn from civil service does not amount to a conflict of interest if “jobs for comrades” pronouncements are something to go by;
6. To discuss whether the above-mentioned point in number 5 does not warrant an election in such a situation to be outsourced to impartial and independent returning officers and polling agents sanctioned by all the stakeholders consistent with the position parties adopted prior to the implementation of UN Resolution 435 (1978).
1. All registered participating parties (political or otherwise) must submit budgets intended for contesting elections. The budgets must include sources of funding such budgets. Auditor-General to audit such funds (budgets) on behalf of the Electoral Commission. Purpose is to control dirty money from entering the electoral process. Only clean money must fund elections.
2. Airtime on state media must be allocated equally to all registered participating parties. This is to ensure a levelled playing field. The starting line should be the same for all parties.
3. No politician (minister, deputy-minister, official, MP) must use government assets particularly vehicles at any political party meeting, rally or for party-specific purpose at any time. This does not apply to the President if he is using his official state assets allocated to him
4. For purposes of deepening democracy, state funding must be applied on the basis of number of votes obtained during elections and not on the representation in the National Assembly.
Political conscientizing and educating the electorate is not the exclusive responsibility of those elected to Parliament but of all registered participating parties.
Therefore, the efforts are partly evidenced in the number of votes obtained. Hence such effort must be acknowledged and rewarded if democracy is to be broadened and strengthened.
5. Political affiliation of members of the Electoral Commission must be made public.
6. For accountability purposes, the Electoral Commission must adopt Codes of Ethics before the forthcoming parliamentary, presidential and local government elections.
7. Election manifesto for the winning party shall not directly be imposed on the civil service without being adopted by Parliament or Cabinet. Regularisation of such documents through normal government structure is important for good governance and transparency.
8. To ensure that elections conform and are consistent with constitutional and statutory requirements, SWANU proposes to revert back to the previous arrangement where the Chairperson of the Electoral Commission of Namibia was a judge or former judge of the Supreme Court or the High Court (Section 5 of the Amended Electoral Act 24 of 1992). This is a minimum, legitimate and reasonable proposal being submitted for consideration taking into account that an Electoral Commission of Namibia is not a constitutional body and therefore protection of ALL Namibians within the context of constitutional democracy can relatively be safeguarded by the inclusion of a judge from the High Court or Supreme Court.
The purpose of an election is to enable parties to compete against each other. In a Namibian situation where a distinction between State (government) and political party is blurred, there is a need to rely on impartial and independent bodies which are only subject to the Namibian Constitution – one such a candidate being the de jure judiciary.
The National Assembly – the base of the sovereignty of our people, the base bound to constitutional order, by the time of an election ought to be dissolved and one is only left with the de facto Executive.
This interim period dictates that the office of Chief Justice must be pro-active in order to protect the interests of ALL Namibians who aspire to influence the composition and policies of the new Government in accordance with the provision of Article 17 of the Namibian Constitution.
– Issued by order of the Political Bureau of the SWANU Central Committee, Windhoek