10 things to watch out for in the new electoral law

The Electoral Act, which was originally passed in 1992, will be amended this year ahead of the National Assembly and Presidential Elections scheduled for November 2009. A draft Electoral Amendment Bill has been circulated for comment. You can find the draft Bill and an explanatory memorandum in the 'Key Documents' section of this website. Here are ten things you should look out for concerning the upcoming debate about the bill.

1. Code of Conduct
Several top electoral officials, including Electoral Commission of Namibia Chairperson Victor Tonchi, have said they would like to see the Political Code of Conduct for parties given some legal force in the bill. However, the Code is not included in the draft bill presently available. If the contravention of the Code of Conduct is made a punishable offence, this would send a serious message to the parties about the importance of political tolerance.

2. Counting of Votes
The bill makes provision for votes to be counted at polling stations and for the results to be announced at the polling station. This is different from the past when votes were transferred to a central place in the constituency to be counted and announcements were only made by the ECN in Windhoek. In other countries the public announcement of results at polling stations has been seen as major deterrent to electoral fraud (see no.3). However, it is unclear whether the results would be publicly announced at the polling stations or just announced to officials. The process of announcing results has to be very clear. At the moment it is not certain if it is the presiding officer, returning officer, Director of Elections, or Chairperson of the ECN who announces the results for polling stations and constituencies. It is also not clear where these announcements will be made.

3. Parallel Vote Tabulation (PVT)

This is not in the bill, but is a process used by election observers to independently verify results. It involves the collection of official polling stations results and is therefore dependent on such results being made publicly available at polling stations. Independent observers then tabulate results in parallel to the election authorities. This helps to prevent any manipulation of results after the polling station counts have been announced. PVT enhances the credibility of elections but will it be possible in Namibia? Only if results are publicly announced at polling stations.

4. Tendered Votes

The tendered vote system allows someone who is not in his or her home constituency on polling day to vote at any polling station in the country. In the past there has been confusion about the counting and announcement of tendered votes. At the last election they were lumped together with ballot papers cast by locals – making it look like some constituencies had over 100 percent turnouts. Despite much criticism of the system, the amendment bill does not deal with tendered votes. Some observers feel they should be abolished and voters should travel to their home areas to cast their ballots.

5. Voter Education

In the past the Electoral Commission of Namibia did not have legal responsibility for voter education. Under the amendment bill, people are required to apply for accreditation from the ECN if they want to be involved in voter education. Applicants must be independent of party affiliation. The ECN will publish a Code of Conduct that governs accredited persons in the Government Gazette. The dangers here are that these clauses will be applied restrictively, possibly excluding competent organisations and people, and that the bureaucracy will delay voter education by civil society activists if they have to wait for accreditation.

6. Voter Registration

There are three types of voter registration: general, supplementary and continuous. General voter registration takes place every 10 years in Namibia and last happened in 2003. Supplementary registration is intended to allow those who could not register during the previous general registration to join the voters list. It is usually takes place for a period of time in certain regions. Anyone can apply to registered under any time under continuous registration. The system of registration depends on how effectively the periods and places for registration are publicised.

7. Election Observers

Election observers will have to be accredited by the ECN. They will also have to be independent of any party and follow a gazetted Code of Conduct. The dangers here are similar to those for voter educators: that bureaucracy will slow down accreditation and that the granting of accreditation will be too restrictive. In addition, accredited observers will have to make a declaration of secrecy, which appears to conflict with their responsibility to communicate publicly what they observe.

8. Offences

In October 2008, the police used Section 104 of the existing Electoral Act to arrest several opposition parties who had been giving leaflets to potential voters urging them to boycott the Tobias Hainyeko regional council by-election. Despite the well-publicised differing interpretations of how these clauses could and should be used and the failure, so far, of the Prosecutor General to press charges against the politicians, Section 104 remains untouched by the amendment bill.

9. Party Funding

The amendment bill fails to tackle Section 46 of the existing Act, which says parties must disclose their foreign funding, but which does not make the procedure for disclosure clear. This section of the Act has been unworkable for 17 years, yet it is not addressed in the new bill. It might as well be removed and a separate law on transparent and accountable party funding be introduced.

10. Timing

The Electoral Amendment Act has only recently been distributed for consultation. It is not, as yet, listed to be tabled in parliament in the current session. Considering that it is now over four years since the last election, it seems to be a very ‘last-minute’ way of doing things. There is very little time for the bill to through parliament and be enacted effectively, since many clauses will necessitate new administration systems and training.