PRESS RELEASE

The reported objections by the ruling SWAPO Party to the altogether 12 names of people included on the voters’ roll for the Omuthiya Local Authority election should be viewed as a mala fide and a frivolous delaying tactic. Accordingly, such objections should be declared null and void on the basis of several established moral, conventional and legal principles or grounds:

Firstly, the voter registration process, which had resulted in the registration and inclusion of the 12 people names to which the SWAPO Party had objected, was conducted by around 62 voter registration officials. These officials had been recruited on inter alia the basis of them being viewed as trusted and tested SWAPO Party members or sympathizers.

Before their final and formal selection and employment by the Electoral Commission of Namibia (ECN), the 62 officials had been subjected to a rigorous screening regime in accordance with certain procedures of the recruitment process. Such recruitment procedures are part of the terms and conditions upon which the arrangement or agreement between the highly partisan and SWAPO Party-controlled Oshikoto Regional Council, on the one hand, and the ECN, on the other, is based.

Secondly, after inter alia NSHR had expressed concern that the abovementioned recruitment and selection process was mired in irregularities and lacked transparency, the ECN launched an investigation on or around February 7-8 2008. Following such a probe, ECN Chairman Dr. Victor Tonchi on February 8 2008 announced that his organization “has discovered no evidence that conclusively support allegations that the recruitment process was flawed or irregular”.

Thirdly, media reports have quoted ECN Director Philemon Kanime as saying “Swapo only raised its objection on February 26, which is quite late”. That is to say, the SWAPO Party only objected to the 11 of the 12 names on the voters’ roll on February 26 2008. This is two days prior to the voting date, being February 29 2008. This also is in spite of the fact that the voters’ roll had been available for inspection at the Ondangwa Magistrates’ Court since February 12 2008!

“In light of the above, the SWAPO Party can hardly now turn around and claim to be prejudiced by the fruits of its arrangement or agreement with the ECN. Nor has the SWAPO Party raised objections, whatsoever, to the ECN’s announcement of February 8 2008 that the latter had ‘discovered no evidence that conclusively support allegations that the recruitment process was flawed or irregular’. This ipso facto means that the voter registration process was above question for both the SWAPO Party and the ECN”, said NSHR executive director Phil ya Nangoloh last Friday.

According to the common law doctrine of estoppel, a party is precluded from taking a position in a case which is contrary to the position that party had taken in earlier legal proceedings. The doctrine also holds that an estoppel can be used as a legal defense against a party that is reneging on a previous statement assumed by it to be a legal truth. In other words, once a statement of fact is entered into a court case, the party that made such statement must stand by its truthfulness.

“In other words, the SWAPO Party must drink its own medicine. This Party cannot now claim that the voter registration process to which it has a party was, after all, irregular and or it lacked transparency”, Dorkas Phillemon, NSHR spokesperson, said.

Firstly, the judicial estoppel, which is also known as estoppel by inconsistent positions, and which is as practiced in law, precludes a party, such as the SWAPO Party, from taking a position in a case (say, challenging the 12 names on voters’ roll), which is contrary to the position the SWAPO Party had taken or had failed to take in earlier proceedings. This is reference to the SWAPO Party’s failure to raise any objections regarding the irregularities in the aforementioned recruitment process as NSHR had alleged.

Consequently, the SWAPO Party cannot anymore claim to have been prejudiced by the said recruitment process and or the subsequent voter registration process and make a claim against the ECN and or any other parties. Nor can the SWAPO Party succeed in a court injunction resulting from the SWAPO Party’s own commissions or omissions in that regard. This state of affairs is most generally referred to as acquiescence or permission by the SWAPO Party through its earlier silence or passiveness about the said recruitment process.

Therefore, the 12 registered voters against whom the SWAPO Party is raising the objections can also raise the defense of estoppel by acquiescence against the SWAPO Party at the Ondangwa Magistrate’s Court.

Secondly, the 12 people can also use the estoppel by deed as a defense against the SWAPO Party. The estoppel by deed is a rule of evidence arising from the status of a contract signed under seal---such as the recruitment agreement between the ECN and the SWAPO Party. Such contract can be used as conclusive evidence against the SWAPO Party which can be precluded or be estopped from claiming that it has been prejudiced by the said agreement.

Moreover, NSHR is of the opinion that the Omuthiya Local Authority election was only called off at the last minute merely on the strength of the short-notice objections by the SWAPO Party on February 26 2008, and not by the objections raised by the Rally for Democracy and Progress (RDP) on February 18 2008. Otherwise, the ECN could have stopped the process then.

Meanwhile, NSHR is also concerned at fresh allegations from both learners and teachers at the Ekulo Senior Secondary School (ESSS) just outside the Omuthiya town. According the allegations, on February 29 2008 between 08h00 and 09h00, the Principal of that school, a certain Nghishekwa, who at the time was still on leave, allegedly arrived at the said school and went from class to class demanding to know from Grade 10, 11 and 12 learners as to who has registered to vote in the said local authority election. He had a list of names of all the learners in each class.

Nghishekwa allegedly demanded that those learners who have registered and who would vote for the SWAPO Party should identify themselves. He allegedly then ticked the names of all those students who had registered as voters and who said they would vote for the SWAPO Party. He allegedly sped off with the lists of their names to the offices of SWAPO Party’s firebrand Regional Councilor Penda ya Ndakolo at the Omuthiya town. Nghishekwa is said to be one of the SWAPO Party candidates in the aforementioned local authority election.

“Clearly then if this allegation is true then it is clear that the SWAPO Party is using the election postponement to see how many people would vote for them. This is why we also call the SWAPO Party’s objection as delaying tactic”, Phillemon concluded.

NSHR is calling upon the ECN to investigate the ESSS allegations as a matter of urgency.

In case of additional comment, please call Dorkas Phillemon or Phil ya Nangoloh at Tel: 061 236 183 or 061 253 447 (office hours) or Cell: +264 811 299 641 (Dorkas) or Cell: +264 811 299 886 (Phil) or E-mail: nshr@nshr.org.na or visit: National Society for Human Rights :: Tolerance - Liberty - Happiness