Law Reform Commission recommends amendments to the Electoral Act – Windhoek Observer

Erasmus Shalihaxwe

The Law Reform and Development Commission has recommended that the Electoral Act of 2014 be amended to make provision for candidates nominated to the National Assembly list to be placed on leave, a practice already in place for Regional Council and Local Authority Elections.

Last year, the Commission submitted a report titled “Statutory Submission in Terms of Section 6(e) of the Report on the Review of Article 46 of the Constitution and Section 77(4)(a) of the Electoral Act, 2014 (Act No. 5 of 2014)” to the Minister of Justice, Yvonne Dausab, containing these recommendations.

The Commission was assigned to review and suggest revisions to the Electoral Act No. 5 of 2014. This Act mandates all politicians in public service and those serving in local and regional authorities to resign from their positions upon being nominated as potential National Assembly candidates.

This review was prompted by directives in 2019 from the Electoral Commission of Namibia, mandating politicians and civil servants nominated to Parliament to resign from their positions in compliance with the Namibian Constitution and the Electoral Act. Many candidates resigned with the expectation of entering Parliament but found themselves unemployed when not elected.

Some notable candidates who resigned in 2019 include Margareth Mensah-Williams, Hilma Nicanor, Hafeni Ndemula, Modestus Amutse, and Phillipus Katamelo. These individuals served in various capacities such as regional councillors, local authority councillors, and Chief Executive Officers representing the Swapo party.

If approved, the recommendations by the Law Reform and Development Commission could prevent such occurrences in the future. The Commission emphasized that despite recommending amendments to the Electoral Act, Article 46 (1)(a) of the Constitution may also need to be amended to avoid erroneous interpretations relating to National Assembly elections.

The proposed amendment would clarify the distinction between the nomination of a candidate before elections and the candidate becoming a member of the National Assembly post-elections, with each stage having its unique requirements. This change will not affect the fundamental requirements listed in Article 47 for a candidate to become a member of the National Assembly.

The Commission believes that the recommended alterations to Article 46 (1)(a) of the Constitution and the Electoral Act, 2014 (Act No. 5 of 2014) would offer the necessary safeguards to the electoral process while respecting the constitutional right in Article 17 to participate in political activity by standing for public office.

Addressing the uncertainty inherent in elections and the potential deterring effect of the current interpretation of the Electoral Act, the Commission highlighted the importance of the right to political activity and the desire to serve in public office. It asserted that such an interpretation treats the exercise of the right in Article 17 as a gamble, forcing citizens to weigh their chances of success against the risk of unemployment.

The report, also scrutinizing the broader implications and the spirit and tenor of the Constitution, has been submitted to Parliament for further examination. The commission comprises Etuna Josua, Acting Deputy Chairperson Ombudsman Basilius Dyakugha, Ombudsman Habo Gerdes, Felicity !Owoses, Angelique Zender, and Mezui Engo.