South Africa

Zille & others vs. the IEC: Is the Friedman test in jeopardy?

By Stephen Grootes 12 August 2014

On Monday DA leader Helen Zille released her weekly online newsletter, in which she claimed that it may no longer be possible to trust the Independent Electoral Commission and the Electoral Court. She joins several other opposition parties who have made the same claim. While part of this claim is about the conduct of IEC Chair Advocate Pansy Tlakula, it is also about the ANC. Whatever the facts, what is frightening is that we appear to be heading towards a situation where we have the ANC and the IEC on one side, and almost everyone else on the other. Which cannot be described as very good for our democracy. By STEPHEN GROOTES.

In her letter Zille seems to feel truly passionate about this subject. She brings together several events, from the way the ANC refused her party entry to a council hall it had booked in Port Elizabeth last week to the manner in which the Electoral Court delayed making a proper ruling in a case relating to Tlokwe councillors. (A recap: they resigned from the ANC, campaigned as independents, claimed they were denied registration, and then eventually won…kind of.) In the letter, Zille adds that the ANC has, in her view, taken over the SABC and the National Prosecuting Authority, and makes a case that the IEC is in danger of becoming “another ANC lapdog”.

Zille also points out that in the Local Government Elections in 2016, the ANC is in very real danger of losing the City of Joburg, Tshwane, Ekhuruleni and the Nelson Mandela Bay Metro Municipality (or Port Elizabeth, if you prefer your town names to be less than five words long). In other words, her major claims are that the stakes are high, and that the ruling party will do almost anything to stay in power, including subverting the IEC.

This falls happily into the lap of United Democratic Movement leader Bantu Holomisa, who’s told EWN that Zille is “welcome to the club” of people who happen to agree with her. Even Economic Freedom Fighters leader, Julius Malema, while calling her a hypocrite (mild, by his standards) says she is correct.

Then we have the stance of the ANC. The party says that this is all just sour grapes, and that none of these parties lodged a substantive objection to the result of the last election.

It’s a pretty strong point, that. In other words, the ANC is saying that if these parties really had a proper case, they would go to court. After all, Luthuli House could argue, it’s not as if the DA has been afraid of going to court in the past.

But this all falls rather messily into the IEC’s more recent backstory. In particular, the ruling by the Electoral Court that Tlakula is unfit to run the organisation because of the Public Protector’s report, which found her guilty of wrong-doing in a headquarters leasing deal.  That ruling is being contested by Tlakula in the Constitutional Court. She is also taking the Public Protector’s report on judicial review. But, in the words of Holomisa’s advocate, David Unterhalter, her behaviour in “clinging to office” despite these claims may alone be enough to suggest she is not fit for office. Depending on your point of view.

Having said all of that, the DA’s claim does require real interrogation. Why is this claim being made now, rather than just before, or just after, an election? And why was it not made just after the last election? As Malema points out, the DA was quick to accept the results in Gauteng, and it was their party agents who were able to confirm that ballot boxes that looked as if they had been dumped hours after polling ended had in fact been counted.

What’s changed since then?

The other aspect is, of course, that while the local government elections may be important for the ANC, they could be even more important for the DA. If it were to mount large campaigns in all four of those cities (I just can’t type out the official name of PE again) and still lose, it might be that this last result was the party’s high water mark. Particularly if there is a workers’ party in the field in the 2019 national elections [and possibly a different leader of the ANC – Ed].

And, as Holomisa points out, while it may – stress the may – be fair to claim there are problems within the IEC, it seems a little early to suggest there are problems with the Electoral Court. After all, it did find against Tlakula, in quite a stinging judgment. Which is hardly what you would expect, should there be some sort of conspiracy at work.

And then there is the structure of the IEC itself. While it is chaired by Tlakula, there are four other commissioners. One of them is Raenette Taljaard, a former member of Parliament for the DA. And while the commissioners do not speak publicly about the goings-on of the commission (apart from deputy chair Terry Tselane on the Tlakula issue), Taljaard would certainly find some way of signalling her concern if necessary. And she could always resign.

However, the biggest problem we have here is not necessarily just the claims against the IEC. It is the now very real chance of huge, and possibly violent, divisions between the IEC and the ANC on the one side, and the other parties on the other. While the other, smaller parties, had questioned the IEC, the fact is that the DA did not did stop these tensions from getting out of hand. Now we have a situation where it looks like the winner, the ANC, is supporting the arbiter of our elections, while the losers are questioning its integrity.

We are now in real danger of failing what we will probably have to call the Friedman Test. Professor Steven Friedman was asked, in 1994, to conduct a test of how it could be determined whether that year’s poll would be free and fair, or what needed to happen to make sure it was so. In the end, the panel he headed decided it wasn’t so much the technical details of what happened, but whether the losers accepted the result. They did in 1994, and thus we all moved on.

Now we seem to have the very real possibility of an election in the near future where all the losers reject the result. While the suburban burghers that vote DA may not rise up in violent revolt against the state, the same cannot be said for supporters of other parties. In other words, there could even be the very real prospect of violence. The vote is something many people in this country gave great sacrifices to win. We have seen huge, violent protests resulting in the destruction of state symbols like libraries and clinics and police stations in the last year. It would be very easy for that anger to turn on those seen as responsible for “stealing” votes. DM

Photo: A women carries water as a clean up operation by a local shop owner takes place after overnight violence in the Alexandra township, Johannesburg, South Africa, 10 May 2014. Violence broken out over night as supporters of the IFP party took to the streets and erected road blocks with burning tires. A heavy army and police presence brought stability to the area overnight. The ANC has won the 07 May election taking 62 percent of the votes. EPA/KIM LUDBROOK



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