Preliminary Statement by the Joint NANGOF Trust and SADC-CNGO Observer Mission (JOM) in respect of the 2009 Namibian Presidential and National Assembly Elections.
18th December 2009
1. Introduction
The Namibia Non-Governmental Organisations Forum (NANGOF) Trust in partnership with the SADC Council of Non-Governmental Organisations (SADC-CNGO) participated in the observation of the Namibian Presidential and National Assembly Elections held on the 27th and 28th of November 2009. The JOM deployed 47 observers to various strategic constituencies in the country. Observations regarding the polling day for voters abroad and at sea on 13th November 2009 will be documented in the JOM’s final report.

2. Observation Process
All elections consist of three phases, namely the pre-election phase, the election phase and the post-election phase.

2.1 THE PRE-ELECTION PHASE

In analysing the pre-election environment based on national, regional and international benchmarks, the Joint Observer Mission (JOM) assessed a number of critical factors that influence the credibility of an election.

The pre-election phase lays the foundation for any election and if that foundation does not meet certain standards a credible outcome of the entire election is compromised.

FINDINGS
The JOM found the following in respect of:

2.1.1 Constitutional and Legal Framework: The Namibian Constitution provides an enabling legal foundation and favourable conditions for free and fair political activity. However, the Electoral Act, Act 24 of 1992 as amended contains weaknesses and omissions, which need to be addressed as a matter of urgency to close gaps for possible abuse, chaos and confusion. (The JOM will elaborate on this aspect in its final report.) The extremely late tabling of the Electoral Amendment Act, Act 7 of 2009, only three months before elections, has not allowed for meaningful input from stakeholders.

2.1.2 Civic Education and Voter Education: The Voter Education by the ECN was inadequate and this could be one of the reasons for the unacceptably high number of spoilt ballots (over 10 576 out of 811 143).

The JOM has also noticed with concern that some national leaders have reverted to vilifying fellow political contestants instead of using the public platform to do appropriate civic education. This worrisome tendency has even been echoed by some church songs.

The JOM is concerned about Section 47D of the Electoral Amendment Act, Act 7 of 2009 which states that registered political parties may provide voter education to their members supporters and sympathisers in respect of any election but are not subject to any conditions or Code relating to accreditation for voter education. This provision is open to abuse, especially when a political party is in control of the state mass media.

2.1.3 Voter Information: Instead of providing critical information to voters, the ECN entertained the nation with radio jingles about their own freeness and fairness. The election dates were announced very late (4 September 2009) and not by the Head of State as required by Section 50(1)(b) of the Electoral Act, Act 24 of 1992 as amended, but by the ECN. This was clearly in violation of the said section of the Act. The lawful announcement of the election dates by the President was only gazetted on 30 September 2009.

Urgently needed information on the upcoming elections, e.g. what constitutes a spoilt ballot, the function of the Central Election Results Centre (CERC), the counting and verification process of ballots, tendered voting, the ECN structures at Constituency level, etc. was not forthcoming. Namibians ventured largely uninformed into the November 2009 elections.

2.1.4 Registration of Voters: The continued practice of registering voters 20 years after independence by sworn statement rather than by Namibian identification documents diminishes the credibility of the Voters’ Roll. Prospective voters were frustrated and turned away by inadequately trained ECN registration officials, who insisted on documents required for voter registration for local authority elections, while these citizens only wanted to be registered for the Presidential and National Assembly elections. Despite clear stipulations regarding the Continuous Voter Registration in Section 28A of the Electoral Act, Act 24 of 1992 as amended, the process in this regard was neither following the letter of the law, neither was it transparent, nor well publicised and explained.

2.1.5 Compilation of the Voters’ Roll: The JOM has observed that there are at least four (4) different versions of the Voters’ Roll which has brought the Voters’ Roll into disrepute. Concerns were raised by most stakeholders that the Voters’ Roll did not reflect thorough checking and updating.

As a result, some voters with Voter Registration Cards did not appear on the Voters’ Roll, while others, who reportedly died months and even years before the election were still found in the Voters’ Roll.

Concerns about the extremely high number of voters registered during the Supplementary Registration period were explained away by the ECN as having included duplicate voter cards. Unexplained, however, remained the sudden removal of many thousands of names after the publication of the preliminary Voters’ Roll. The ECN also never published the number of voters who registered during Continuous Voter Registration.

2.1.6 Political Tolerance: The JOM noted that in contravention of the ECN’s Code of Conduct for Political Parties to which all the fourteen (14) participating political parties had subscribed, the election campaign process was tainted by political intolerance and intimidation.

Certain regions have effectively been declared as "no-go areas" for certain parties. Violence was used to prevent members of the opposition to campaign in such areas. This is in contravention of Chapter 3 of the Namibian Constitution (the Bill of Rights - Fundamental Human Rights and Freedoms): Article 5 entitled Protection of Fundamental Rights and Freedoms, and Article 17 entitled Political Activity and Article 21 entitled Fundamental Freedoms.

The word "provoke" was deliberately misinterpreted to mean that a political party campaigning in an area where it did not have a stronghold amounted to such a party provoking the residents of that area. Instead of responding to such a misinterpretation and guiding the nation, the ECN kept quiet.

2.1.7 Media Coverage and Campaign Resources: As far as the publicly funded state media are concerned the news coverage on NBC TV was glaringly biased in favour of one political party; so were the radio broadcasts, while the New Era newspaper and Nampa attempted to present some balanced information. The JOM bemoans the summary scrapping of the customary free air time to contesting political parties by the NBC instead of coming up with a negotiated formula, as the parties who took the matter to court were made to believe. This action by the NBC can be interpreted as having been retaliatory.

The JOM has observed that the incumbent party took advantage of its access to state resources, creating a scenario of public officials, including the President and cabinet ministers, mixing up state and government functions with ruling party activities. This led to certain regional governors convening meetings during official working hours under the pretext of voter education but in effect demonstrated to residents how to vote for the ruling party. To such officials there is no distinction between the state, government and the ruling party.

This deliberate mixing up of state functions with party political campaigning has seriously compromised the levelness of the political playing field.

2.1.8 Training of Election Officials, Observers and Party Agents: In contrast with previous elections and despite repeated requests to the ECN the JOM could not be provided with 2009 Training Manuals for election officials (Presiding & Polling Officers and Co-ordinators & Returning Officers), thus raising concerns about the level of training provided to election officials.

The enquiring members of the JOM were not informed by the ECN whether the 2004 Manuals were still applicable, thus creating anxiety about which Elect Forms would be applicable, how election results would be announced and posted at polling stations, (since this was a new procedure for Namibia), what the ‘verification’ procedure by the returning officer entailed, etc.

The apparent absence of training manuals for presiding and polling officers, ECN coordinators and returning officers as well as the Central Elections Results Centre Handbook also seriously impeded effective training of observers and party agents. This has further been compounded by the absence of new regulations accompanying the 2009 Electoral Amendment Act and could explain the various irregularities and shortcomings experienced during the November elections.

The lack of crucial information during training has resulted in party agents and some observers not knowing their rights and responsibilities as well as proper procedures.

2.1.9 Accreditation of Observers: The JOM remains concerned about the basis on which accreditation is granted, denied or cancelled according to the Electoral Amendment Act, Act 7 of 2009, which is open to abuse since it is based on the Commission’s discretion.

It is further noted that the Electoral Act does not differentiate between local and international observers. This lack of differentiation has resulted in the marginalisation of national observers during the pre-election phase and has deprived the ECN of valuable input.

2.1.10 Role of Security Forces: The JOM adds its voice to the numerous commendations for the exemplary lead taken by the Minister of Safety and Security, the Inspector-General of the Namibian Police, supported by regional commanders, executing their mandate free from political interference, fear or favour and instructing their subordinates to act likewise.

CONCLUSION ON THE PRE-ELECTION PHASE
The above findings point towards key components of the Pre-election Phase, which fell short of meeting the requirements, benchmarks and standards for the holding of free and fair elections.



2.2 THE ELECTION PHASE
2.2.1 Polling Days: The JOM noted that both polling days were peaceful and calm. The JOM commends the Namibian people for exercising their democratic right and displaying good cooperation.

The analysis by the JOM of the voting queues and patterns suggests that with adequate planning and coordination, it is actually possible to hold the elections on one day in accordance with generally accepted best practices.

2.2.2 Voting process: The voting process was generally smooth. The JOM observed the following good practices:-
• The concept of having two types of ink combined with the ultra-violet light.
• The presence and supportive role of the Police.
• Generally friendly polling officials.

The Mission however noted the following issues of concern:-
• Limited deployment of party agents.
• Inadequate knowledge of party agents regarding their roles and responsibilities.
• Deficiencies in the layout at some polling stations.
• Inconsistencies in the application of the inking procedures in some polling stations.
• The widely observed failure of either one or both of the inks.
• Inconsistent interpretation of the overnight vigil at ballot boxes.
• Fatigue of the polling officials, police and party agents, especially on the second day of the elections, which had a negative effect during counting.
• Interference by some party agents with the voting.

2.2.3. Voter turnout: The JOM is challenged to comment on the voter turnout in the absence of a reliable voters register. According to the official final results the voter turnout in some constituencies in the northern, central and western regions was excessively high (between 100.7% up to 191%) while southern Namibia recorded contrasting low turnouts between 41% and 68%.

2.2.4 Ballot Papers, Ballot Boxes and Election Materials:
The unfamiliar layout of the ballot books with the very narrow counterfoil at the top gave the impression to voters that their voter card number was written onto the ballot paper, raising fear about the secrecy of their vote being compromised.

The JOM noted that the ballot boxes were not identifiable by individual numbers. Instead, either all four ballot boxes at a polling station donned the same number or they were numbered in pairs. Section 74(2)(a) of the Electoral Act as amended instructs the Director of Elections to provide every participating political party with a list containing the numbers allotted to the ballot boxes. This is a clear indication that no two ballot boxes are supposed to have the same number.

The electronic Voters’ Roll was introduced in 2004 with the aim to enhance efficiency during polling days. However the JOM observed several deficiencies regarding the Voters’ Roll, e.g. it was not interlinked which compromised the One-Person-One-Vote principle in those reported cases where none of the two inks were effective. At some polling stations the ECN officials could not access the electronic Voters’ Roll due to missing passwords. At other polling stations the wrong photo appeared on the computer screen when the voter’s card number was typed in. The fact that only the manual Voters’ Roll of the specific constituency in which a polling station was located, was available during voting, made verification of voters casting tendered votes impossible and the paper work cumbersome.

2.2.5 Counting: The JOM regards it as a positive development that the new Electoral Amendment Act provides for counting of votes at each polling station. However, the legal requirement of posting of results at polling stations was not adhered to in numerous cases.

Section 11.4 of the ECN’s Handbook for Election Observers 2009/2010 empowers Party Agents with the right to sign the ECN’s Elect forms used at polling stations as witnesses. However, party agents interviewed by the JOM stated, that they were denied this right. It is not clear whether this prohibition was the norm, but it surely compromises the credibility of every relevant ECN Elect form, which does not bear the signature of party agents present at a polling station.

CONCLUSION ON THE ELECTION PHASE
The election phase was generally acceptable up to the counting of ballots, when it started to derail.

2.3 POST-ELECTION PHASE
The post-election phase is still in full swing.

2.3.1 Announcement of Overall Results: The new Electoral Amendment Act of 2009, which introduced counting of votes and posting of results at polling stations, was expected to expedite the process of announcing the overall results. Instead, results were announced even later than in 2004.

Observers, party agents and media who were accredited to the Central Election Results Centre (CERC) experienced that transparency was compromised at this Centre. Instead of witnessing ECN receiving the results flowing in from the constituencies around the country, and receiving copies thereof, ECN was receiving the results under a cloak of secrecy. Accredited persons to the CERC were all locked out and left idling their time away in the foyer. This has raised serious questions about the transparency of the ECN and the purpose of the CERC.
2.3.2 Post-Election Review: It is clear that the Tendered Vote System remains a challenge to the ECN, thereby creating serious logistical and election management challenges, resulting in more time being taken to tally, compute and announce the results. The practice of lumping results of ordinary votes and tendered votes together contravenes Section 26 of the Electoral Amendment Act of 2009. This unlawful practice resulted in voter turnouts of above 100%.

Due to the Tendered Vote System it is impossible to announce constituency results in a piecemeal fashion as has been done. No single constituency result can be announced before all results of all constituencies have been compiled and verified, since every constituency potentially carries tendered votes from every other constituency. After that results must be announced at once and in one go.

Section 25(5) of the Electoral Amendment Act of 2009 makes it clear that the only place where re-counting of votes is authorised is at the polling station. No recounting of ballots should be done at the so-called ‘verification centres’.

The so-called Verification Centres took Namibian’s by surprise. The ECN also referred to them as Constituency Results Centres, but they remained under a shroud of secrecy. Enquiries to certain Presiding Officers about their location were met with unwillingness to disclose their whereabouts. It emerged that one of the polling stations in each constituency was supposed to be such a centre and that the Returning Officer for that constituency was in charge of the centre. However, the law makes it clear that at no stage are ballot boxes and ballots to be handled without the presence of party agents, security personnel and observers. This provision was clearly violated at many Constituency Results Centres.

2.3.3 Acceptance of Results: The November election results have been rejected by the majority of political parties.

2.2.4. Post-Election Disputes: Nine political parties are approaching the High Court of Namibia to challenge the validity of the November 2009 election results.

2.2.5 Post-election tendencies: Worrisome tendencies observed so far by the JOM are an increased clamp-down on public servants (including the constitutionally guaranteed independent Judiciary and various Ambassadors and High Commissioners) by the re-elected ruling party. The political intolerance of the pre-election phase is continuing.

CONCLUSION ON THE POST-ELECTION PHASE
The simultaneous announcement and rejection of the overall results has created a nationwide state of uncertainty.




3 Recommendations

Our final report will contain comprehensive recommendations which will be presented to the ECN as well as Parliament. Copies will be made available to other stakeholders.

OVERALL CONCLUSION

The NANGOF Trust and SADC-CNGO congratulate the people of Namibia for a peaceful Election Phase.

However, based on our findings in the pre-election, election and post-election phases the JOM has serious reservations about the freeness and fairness of the election process.

The JOM trusts that Namibians will uphold peace and tolerance during the Post-Election Phase as the nation awaits the outcome of the court challenge(s).

Issued by

………………………………………………..
Ronny Dempers, Chairperson, NANGOF Trust
On behalf of the Joint NANGOF Trust and SADC-CNGO Observer Mission