NEFF saga: Attorney-general warned ECN
At the height of the Electoral Commission of Namibia’s (ECN) court battle with the Namibia Economic Freedom Fighters (NEFF), the Office of the Attorney-General provided legal advice cautioning that the electoral body failed to apply the law correctly when it deregistered the red berets, hence the matter should not be defended, Namibian Sun has learnt.
The Office of the Attorney-General was particularly concerned that due processes were not followed.
NEFF was deregistered in June for failing to lodge its audited financial statements for the period of 2022/2023 and failing to publish 2020/2021 and 2021/2022’s abridged versions of audited financial statements in two daily newspapers circulating throughout Namibia, as is required by law.
Government attorney Phelem Like, in his legal opinion dated 16 July, highlighted the commission's failure to properly apply the ‘audi alteram partem’ principle, which ensures that any party facing adverse decisions must first be given a fair opportunity to respond.
The legal opinion probed whether ECN exercised its powers justifiably when it deregistered NEFF, whether the party was granted a hearing, whether ECN issued a notice to the party prior to deregistration and whether the commission was justified in deregistering the party solely on the grounds of its failure to comply with sections 140 and 158 of the Electoral Act, where Section 188 provides for offences and penalties for non-compliance.
Section 188 makes provision for the ECN to fine parties N$10 000 and N$20 000 respectively for first and second offences.
Unnecessary costs
Like cautioned the ECN that defending the case would only lead to unnecessary legal costs.
“On the conspectus, it would appear that the [ECN] failed to apply the law correctly when it deregistered NEEF as a political party. Owing to that, we advise that this matter should not be defended, but rather let the court pronounce itself on the law, relative to the provisions of the Electoral Act and its requirements. Ordinarily, this matter is not one where we should attract unnecessary legal costs and defend a matter with clear prospects in favour of the applicant,” he wrote.
The government attorney’s legal advice was vindicated last week when the court ruled that, apart from not granting NEFF an opportunity to answer to why it should not be deregistered, ECN also failed to exhaust the option of appointing auditors itself, who would be paid for by the defaulting party.
The court found that, while NEFF was not compliant with ECN’s audit requirements, the electoral body should still have exhausted the avenues of granting the party an audience or appointing an auditor on its behalf before going the route of deregistration.
The way forward
Questioned about the legal opinion over the weekend, ECN spokesperson De Wet Siluka said the electoral body will respond after studying the judgment.
“The commission has considered and resolved to respond to all queries related to the deregistration of NEFF upon proper consideration of the judgment. The commission will, upon such consideration, issue a comprehensive statement of its position on the subject matter and the way forward,” he said.
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The Office of the Attorney-General was particularly concerned that due processes were not followed.
NEFF was deregistered in June for failing to lodge its audited financial statements for the period of 2022/2023 and failing to publish 2020/2021 and 2021/2022’s abridged versions of audited financial statements in two daily newspapers circulating throughout Namibia, as is required by law.
Government attorney Phelem Like, in his legal opinion dated 16 July, highlighted the commission's failure to properly apply the ‘audi alteram partem’ principle, which ensures that any party facing adverse decisions must first be given a fair opportunity to respond.
The legal opinion probed whether ECN exercised its powers justifiably when it deregistered NEFF, whether the party was granted a hearing, whether ECN issued a notice to the party prior to deregistration and whether the commission was justified in deregistering the party solely on the grounds of its failure to comply with sections 140 and 158 of the Electoral Act, where Section 188 provides for offences and penalties for non-compliance.
Section 188 makes provision for the ECN to fine parties N$10 000 and N$20 000 respectively for first and second offences.
Unnecessary costs
Like cautioned the ECN that defending the case would only lead to unnecessary legal costs.
“On the conspectus, it would appear that the [ECN] failed to apply the law correctly when it deregistered NEEF as a political party. Owing to that, we advise that this matter should not be defended, but rather let the court pronounce itself on the law, relative to the provisions of the Electoral Act and its requirements. Ordinarily, this matter is not one where we should attract unnecessary legal costs and defend a matter with clear prospects in favour of the applicant,” he wrote.
The government attorney’s legal advice was vindicated last week when the court ruled that, apart from not granting NEFF an opportunity to answer to why it should not be deregistered, ECN also failed to exhaust the option of appointing auditors itself, who would be paid for by the defaulting party.
The court found that, while NEFF was not compliant with ECN’s audit requirements, the electoral body should still have exhausted the avenues of granting the party an audience or appointing an auditor on its behalf before going the route of deregistration.
The way forward
Questioned about the legal opinion over the weekend, ECN spokesperson De Wet Siluka said the electoral body will respond after studying the judgment.
“The commission has considered and resolved to respond to all queries related to the deregistration of NEFF upon proper consideration of the judgment. The commission will, upon such consideration, issue a comprehensive statement of its position on the subject matter and the way forward,” he said.
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