Five commissioners of the Electoral Commission of Namibia (ECN) were on Tuesday sworn in by the Judge President and Deputy Chief Justice of Namibia, Petrus Damaseb, at his chambers at the Windhoek High Court despite serious concerns about the constitutionality of their selection.
One by one the commissioners took the oath and affirmation to their office which makes them the most prominent custodians of voting rights, as entrenched in Article 17 of Namibia’s Constitution.
The commissioners are Advocate Notemba Tjipueja, the chairperson, Ulrich Freyer, Barney Karuuombe, Albertina Nangolo and Elsie Nghikembua who replaces Nespect Salom.
Tjipueja told the media after the swearing in ceremony that the ECN is gearing up to be ready for the next national elections to be held in 2019 and is in the process of establishing regional structures to cope with the pressure. According to her, the new commissioners are raring to go and are fully optimistic of meeting the immense task ahead of them.
On a question on the use of paper trails in future elections, Tjipueja said that chapter is not closed. “We are in consultations with the main stakeholders with regard to paper trails,” she responded.
But questions have been raised on various platforms on the constitutionality of the appointment of the new commissioners.
Parliamentarians, especially from the opposition, have questioned the way the process was conducted. The fact that no hearings or interviews were held was of great concern.
However, possibly the most damning criticism of the process came from a Namibian studying law at Oxford University in England, Ndjodi Ndeunyema, in a blog on the university’s website. In a critique called: Questioning the constitutionality of newly appointed electoral commissioners in Namibia, Ndeunyema questions the process.
According to him pertinent constitutionality questions around their appointment remain unsettled.
He says there has been a series of challenges to electoral processes based on manipulation and fraud allegations since Namibia’s first 1989 elections. These, while not successful, have succeeded in exposing the electoral system as flawed and in need of reform, which ultimately led to the Third Amendment to the Namibian Constitution (Article 94B) that entrenched ECN as a constitutional institution that is mandatorily guided by the principles of independence, transparency and impartiality, Ndeunyema says. Amongst the reforms, he says, the Electoral Act (EA) introduced a new process for appointing commissioners to ensure that they are above suspicion and inspire public confidence.
The EA’s appointment process is divided into two alternatives, he says.
First a Selection Committee (SC) – composed of the Public Service Commission, Law Society and Public Accountants Commission chairs, as well as the Qualifications Authority Director and the High Court Registrar – must be constituted, Ndeunyema states.
The SC is expected to hold meetings and interviews that are open to both public and media. “The second alternative process allows the National Assembly’s (NA) Privileges Committee (PC) – currently constituted of six NA members, three ruling party members including the Speaker, and two opposition members – to carry out commissioner selection if, for ‘any reason’, the NA secretary fails to constitute the SC or, once constituted, the SC fails to recommend names to the President within the prescribed time,” Ndeunyema explains.
Compared with the SC’s appointing process, he said, the PC process is scant on details under the EA. For example, although the SC is required to conduct public interviews, the PC is not explicitly under the same duty.
He goes on to say: “With the lapse of office of the previous commissioners, an appointment process was initiated. The SC was not constituted in a timely manner to complete the selection, resulting in recourse to the alternative process which abdicated appointment duties to the PC. The reasons for the SC’s untimely constitution are unclear but media reports quote the NA Speaker as citing complications of time and technical reasons. Consequently, in appointing commissioners, the PC did not publicly hold interviews of candidates or even make these names known to the public. It exercised its powers under a veil of secrecy, and is said to have made recommendations based on reading submitted résumés alone.”
“Three issues relating to the constitutionality of appointments thus arise. First, the EA gives the NA secretary exclusive power to constitute the SC, but does not incorporate measures of accountability and broadly allows ‘any reason’ as acceptable for not constituting the SC. Vague reasons of technicalities are unsatisfactory grounds.
“Secondly, the alternative process of allowing the PC to appoint commissioners falls short of the constitutional principle of ECN independence; the PC’s composition exclusively consists of political office-bearers, raising doubts as to its members’ political non-partisanship in the appointment process.
“Thirdly, assuming the PC’s selection powers to be constitutional, the manner in which the PC carried out selection – closed to the public and media and not subjecting applicants to an interview process – falls woefully short of constitutional transparency requirements. No doubt, the triple standard must also be realised at the ECN’s formative stage during commissioner selection. It follows, therefore, that commissioners will be sworn in to office unconstitutionally,” he charges.
Ndeunyema holds B. Juris and LLB (Hons.) degrees from the University of Namibia and MSc in Criminology and BCL degrees from Oxford University, where he is currently a MPhil in Law candidate. He has researched extensively on electoral issues including a close involvement in the drafting of the 2014 Electoral Act of Namibia.