Itula and Others v Minister of Urban and Rural Development andOthers (1 of 2019) [2020] NASC 6 (5 February 2020)

Itula and Others v Minister of Urban and Rural Development andOthers (1 of 2019) [2020] NASC 6 (5 February 2020)

The Federal Voting Machine Ordinance is unconstitutional insofar as it does not ensure effective public monitoring and reliable verifiability of the essential steps in the election act and the ascertainment of results when computer-controlled voting machines are used. The use of Nedap electronic voting machines in the 16th German Bundestag elections violated the constitutional principle of the public nature of elections, as neither voters nor the public could reliably verify that votes were recorded and counted without manipulation or error. However, these election errors do not justify invalidating the election results in the affected constituencies, as there is no evidence of...

Citation
[2020] NASC 6
Parties
Complainant Re 1: Dr. W…; Complainant Re 2: Prof. Dr. W…; Respondent: German Bundestag
Court
Supreme Court
Jurisdiction
Namibia
Judgment Date
5 February 2020
Case Number
1 of 2019
Procedural Posture
Election Petition / Constitutional Complaint / Final Judgment
Outcome
Complaints allowed in part; Federal Voting Machine Ordinance and use of Nedap voting machines declared unconstitutional to the extent specified; election results upheld.
Legal Topics
Public Nature of Elections, Electronic Voting Machines, Parliamentary Democracy, Principle of Verifiability, Secrecy of Elections, Mandate Relevance
Source Language
English
Constitutional Law Election Law Public Nature of Elections Electronic Voting Machines Parliamentary Democracy Principle of Verifiability Secrecy of Elections Mandate Relevance

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Parties

Dr. W…

Complainant Re 1

Prof. Dr. W…

Complainant Re 2

German Bundestag

Respondent

Procedural Posture

Election Petition / Constitutional Complaint / Final Judgment

Legal Issues

  1. 1 Whether the Federal Voting Machine Ordinance and the use of Nedap electronic voting machines in the 16th German Bundestag elections violated the constitutional principle of the public nature of elections under Article 38 in conjunction with Article 20.1 and 20.2 of the Basic Law.
  2. 2 Whether the lack of effective public monitoring and verifiability in the use of electronic voting machines is constitutionally permissible.
  3. 3 Whether the election errors identified justify invalidating the election results in affected constituencies.

Ratio Decidendi

The Federal Voting Machine Ordinance is unconstitutional insofar as it does not ensure effective public monitoring and reliable verifiability of the essential steps in the election act and the ascertainment of results when computer-controlled voting machines are used. The use of Nedap electronic voting machines in the 16th German Bundestag elections violated the constitutional principle of the public nature of elections, as neither voters nor the public could reliably verify that votes were recorded and counted without manipulation or error. However, these election errors do not justify invalidating the election results in the affected constituencies, as there is no evidence of...

Court Disposition

Complaints allowed in part; Federal Voting Machine Ordinance and use of Nedap voting machines declared unconstitutional to the extent specified; election results upheld.

Orders

  • The Federal Voting Machine Ordinance is declared incompatible with Article 38 in conjunction with Article 20.1 and 20.2 of the Basic Law insofar as it does not ensure monitoring that complies with the constitutional principle of the public nature of elections.
  • The use of Nedap electronic voting machines of the specified types in the 16th German Bundestag elections is declared incompatible with Article 38 in conjunction with Article 20.1 and 20.2 of the Basic Law.