By: Andrew Kathindi

Lawyer Norman Tjombe has filed for contempt of court against the Electoral Commission of Namibia (ECN) and the Popular Democratic Movement (PDM) for failing to gazette his clients as parliament members.

An electoral court last year ruled that (PDM) members Charmaine Tjirare, Reggie Diergaardt, Frans Bertolini, Yvette Araes, Mike Venaani and Tjekupe Maximilliant Katjimune were to be added to a parliament list as members and that a public gazette should be issued to that effect.

Initially, the party submitted to ECN a list consisting of leader McHenry Venaani, Jennifer van den Heever, Ricky Vries, Vipua Muharukua, Nico Smit, Jan van Wyk, Elma Dienda, Esme !Aebes, Johannes Martin, Kazeongere Tjeundo, Inna Hengari, Geoffrey Mwilima, Elizabeth Celeste Becker, Sydney Ndumba, Winnie Moongo and Pieter Mostert at number 16. However, following the October directive, ECN automatically removed some PDM members [who had refused to resign] from the party list in order to comply with the Electoral Act.

The ECN then adjusted the party’s list of candidates for the National Assembly election that was finally gazetted.

The list after the removal of some members was in the following order: Venaani, followed by Van den Heever, Vries, Muharukua, Smit, Van Wyk, Dienda, Hengari, Becker, Moongo, Frans Bertolini, Charmaine Tjirare, Yvette Araes, Maximilliant Katjimune, Raymond Diergaardt and Venaani’s father, Mike Venaani at number 16.

However, according to court documents PDM forwarded a different list of names to the electoral commission, adding !Aebes, Martin, Tjeundo, Mwilima, Ndumbah and Mostert.

The applicants sought an order to have !Aebes, Martin, Tjeundo, Mwilima, Timotheus Sydney Shihumbu and Mostert recalled from parliament. They also sought an order declaring that the swearing in of the said MPs was unlawful and the court should order ECN to declare the applicants as the duly elected MPs.

Tjombe argued that his clients were never formally informed of the party’s or ECN’s decision to remove their names from the party list.

He said they allegedly only came to know about it on social media.

Furthermore, Tjombe argued that PDM and ECN have wrongly interpreted the law.

“If the interpretation offered by the ECN and PDM is correct, it would then not matter that the list compiled for the previous general election must be used, because a political party can simply appoint whoever person they deem fit, who may never have been on any list,” explained Tjombe last year.

PDM’s lawyer Ramon Maasdorp argued that the party list of candidates was not necessarily the list of people who would go to the National Assembly.

“The legislation, read with paragraph (4) of Schedule 4, informs us that irrespective of the names on the list, political parties still have the discretion to choose whom they want to represent the party and fill any seats that the party might win in the general election,” explained Maasdorp.

He argued that the applicants failed to resign from their respective employments as required by law. The list of people that were sworn in on 20 March were chosen by the party in order for the party to ensure that it had national representation, regional diversity, experience, and competency, said Maasdorp.

Deputy Judge President Hosea Angula together with judges Shafimana Ueitele and Thomas Masuku ruled in July 2020 that political are not allowed to change their list of candidates nominated for the National Assembly after an election.

The judges also said that the Electoral Act does not give the ECN power to change candidates’ list.

Both the ECN and the official opposition party lodged appeals against the court’s ruling, and both appeals have lapsed.

“Since the 12th of October 2020, when the appeal lapsed, we have been trying to get a compliance with the court order, but they [ECN] didn’t want to do that.

“So, we have decided to go to court and ask for contempt of court proceedings. The matter has been filed. Everything has been done, we are just waiting for the court to give us dates, which will likely happen in the next week or so,” Tjombe said.

According to Tjombe, ECN and PDM have a different interpretation of what the rules say with regards to the appeals.

“They will have to come to court and see if the courts agree with their interpretation or not. They are arguing that the appeal is still pending and, therefore, the court order is suspended,” Tjombe said.

This comes as parliament is set to open next week on 7 September.

“We would have wanted ECN to do the necessary documents by now already so that when parliament reopens the correct people go to parliament, but that seems not to be the case,” he further said.

According to court documents in the possession of The Villager, government attorney Mati Asino is aware that Tjombe-Elago Inc has instituted the contempt of court proceedings.

The ECN has, however, said there is no basis in law for filing for contempt of court.

“Relying on what we set out herein before there is no basis in law for the contempt of court proceedings. In the circumstances, such proceedings stand to be opposed by the ECN.

“Further, since the envisaged contempt of Court proceedings are vexatious or frivolous the ECN shall ask the Honourable Court to order that your clients pay the cost of the application including the cost of one instructing and one instructed counsel.”

Asino earlier this year questioned why lawyers representing PDM MPs, whose seats could be in jeopardy, had dragged their feet on lodging an appeal to the electoral court ruling.

The matter started after a 96-member parliament list submitted to the ECN was then altered in a confusing saga that followed a directive from ECN which instructed all who had been nominated to the National Assembly to resign from any position in the public service.

Parliament previously stated that they could not swear the new names to parliament without a gazette from ECN.