ANALYSIS: Why separate courts for similar election challenge?
I suspect this is the very question the drafters of the Electoral Act, 2014 (Act No. 5 of 2014), must be pondering. Why did they create separate routes for Presidential and National Assembly election challenges? Why? If the facts, urgency, and significance are most likely similar, if not identical, why the divergence?
The presidential election challenge is heard exclusively by the Supreme Court, while the National Assembly election challenge—arising from the same facts—must first be routed to the Electoral Court (a division of the High Court) and only reaches the Supreme Court on appeal.
For arguably the first time in our history, both courts are running parallel proceedings based on the same facts. This creates the possibility that their findings could either align or conflict regarding the common facts before them and the application of the law. Is this what the lawmakers intended?
Indications are that the Electoral Court will hear the matter brought by IPC, with LPM seeking to join. If the court accepts urgency, it must render judgment within 72 hours. Otherwise, its ruling will be due no later than seven days before the swearing-in of new Members of Parliament.
What happens if the Electoral Court dismisses the urgency of the matter and only delivers judgment after the Supreme Court ruling? The Supreme Court will hear this matter on 10 February and has 14 days to deliver its judgment. If the Supreme Court’s decision comes first, will the Electoral Court be bound by it, considering the facts and issues might be the same?
This raises the fundamental question: what did they create, and why? Even if the presidential challenge is concluded and the president is sworn in, he or she will not be able to appoint a vice-president or Cabinet without a constituted National Assembly. Why, then, separate the routes for these symbiotically linked and dependent processes and institutions?
*Yarukeekuro Ndorokaze is an admitted legal practitioner of the Namibian High Court and a video-journalist. This analysis is written in his private capacity.
The presidential election challenge is heard exclusively by the Supreme Court, while the National Assembly election challenge—arising from the same facts—must first be routed to the Electoral Court (a division of the High Court) and only reaches the Supreme Court on appeal.
For arguably the first time in our history, both courts are running parallel proceedings based on the same facts. This creates the possibility that their findings could either align or conflict regarding the common facts before them and the application of the law. Is this what the lawmakers intended?
Indications are that the Electoral Court will hear the matter brought by IPC, with LPM seeking to join. If the court accepts urgency, it must render judgment within 72 hours. Otherwise, its ruling will be due no later than seven days before the swearing-in of new Members of Parliament.
What happens if the Electoral Court dismisses the urgency of the matter and only delivers judgment after the Supreme Court ruling? The Supreme Court will hear this matter on 10 February and has 14 days to deliver its judgment. If the Supreme Court’s decision comes first, will the Electoral Court be bound by it, considering the facts and issues might be the same?
This raises the fundamental question: what did they create, and why? Even if the presidential challenge is concluded and the president is sworn in, he or she will not be able to appoint a vice-president or Cabinet without a constituted National Assembly. Why, then, separate the routes for these symbiotically linked and dependent processes and institutions?
*Yarukeekuro Ndorokaze is an admitted legal practitioner of the Namibian High Court and a video-journalist. This analysis is written in his private capacity.
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