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Rally for Democracy and Progress and 8 O v Electoral Commission of Namibia and 5 Others

Rally for Democracy and Progress and 8 O v Electoral Commission of Namibia and 5 Others

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Published by André Le Roux
Rally for Democracy and Progress and 8 O v Electoral Commission of Namibia and 5 Others
Rally for Democracy and Progress and 8 O v Electoral Commission of Namibia and 5 Others

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Categories:Types, Research, Law
Published by: André Le Roux on Oct 26, 2012
Copyright:Attribution Non-commercial

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12/04/2012

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REPORTABLE
CASE NO. SA 12/2011
IN THE SUPREME COURT OF NAMIBIA
In the matter between:
RALLY FOR DEMOCRACY AND PROGRESSUNITED DEMOCRATIC FRONT OF NAMIBIADEMOCRATIC TURNHALLE ALLIANCECONGRESS OF DEMOCRATSREPUBLICAN PARTY OF NAMIBIAALL PEOPLES PARTYNATIONAL UNITY DEMOCRATIC ORGANISATIONNAMIBIA DEMOCRATIC MOVEMENT FOR CHANGEDEMOCRATIC PARTY OF NAMIBIA1
st
Applicant /Appellant2
nd
Applicant /Appellant3
rd
Applicant /Appellant4
th
Applicant /Appellant5
th
Applicant /Appellant6
th
Applicant /Appellant7
th
Applicant /Appellant8
th
Applicant /Appellant9
th
Applicant
/
Appellant
and
ELECTORAL COMMISSION OF NAMIBIASWAPO PARTY OF NAMIBIAMONITOR AKSIEGROEPSOUTH WEST AFRICA NATIONAL UNIONNATIONAL DEMOCRATIC PARTYCOMMUNIST PARTY1
st
Respondent2
nd
Respondent3
rd
Respondent4
th
Respondent5
th
Respondent6
th
RespondentCoram
:
 
SHIVUTE CJ, MARITZ JA, MAINGA JA, CHOMBA AJA
et 
MTAMBANENGWE AJA
 
2
Heard
: 3 October 2011
Delivered:
25 October 2012 _________________________________________________________________  APPEAL JUDGMENT _________________________________________________________________ 
THE COURT
: A. Introduction[1] The primary purpose of the applicants is to seek an order setting aside theNovember 2009 general election for members of the National Assembly which,they claim, must be avoided on account of numerous corrupt, illegal, irregular andunprocedural election practices which resulted in an undue election or return. Tothat end, they profess to draw on
 –
and ultimately seek to vindicate - the principleof democracy in which our Republic is constitutionally rooted. The first and secondrespondents oppose the application and, unsurprisingly, purport to do so indefence of the very same principle. They deny that the election was marred or itsreturn affected by the alleged malpractices. They contend that the declared resultreflects the political will of enfranchised Namibians freely exercised in an electionfairly conducted. Neither the election nor its results, they maintain, should be setaside: Acceding
to the applicants‘
unfounded and unproven assertions wouldsubvert the democratically ascertained constitutional and political mandate givenby Namibians to their elected representatives in the National Assembly.[2] With the notion of democracy at the core of the conflicting contentionsadvanced by the opposing parties in this matter, it is apposite to briefly reflect atthe outset on its constitutional significance and the importance of its place in the
 
3adjudication of the multiple issues presented to the Court in the course of thislitigation.[3] The principle of democracy is an immutable part of the constitutionalbedrock upon which our country has been founded. It is historically, ideologicallyand socio-politically profoundly important to our character and constitution as anation: It is the first mentioned of the interrelated, foundational triad of principleson which our State is constitutionally grounded.
1
Its scope and import aredeepened and augmented by the other two equally important principlesproclaimed in the same constitutional breath: the rule of law and justice for all.Moreover, as a precept fundamental to our values and aspirations as a nation, itsimport is repeatedly echoed throughout our Constitution, from the Preamble to theSchedules. Its purpose is articulated in the third paragraph of the Preamble:
2
toeffectively maintain and protect the fundamental complementary values of humandignity, equality, freedom, justice and peace
3
and the right to life, liberty and thepursuit of happiness
4
in a democratic society, where the government isresponsible to freely elected representatives of the people, operating under asovereign constitution and a free and independent judiciary. Its essence iscaptured in the founding provision of the Constitution that '(a)ll power shall vest inthe people of Namibia who shall exercise their sovereignty through the democraticinstitutions of the State';
5
its protection is enduringly accorded to all Namibian
1
See: Article 1(1) of the Namibian Constitution.
2
Referring to the rights articulated in the first two paragraphs of the preamble, it reads: 'Whereasthe said rights are most effectively maintained and protected in a democratic society, where thegovernment is responsible to freely elected representatives of the people, operating under asovereign constitution and a free and independent judiciary'.
3
Enunciated in the first paragraph of the Preamble.
4
Recorded in the second paragraph of the Preamble.
5
Article 1(2) of the Constitution.

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