Amid all our political debates and arguments, and predictions about the future and what various election results could look like, it was always generally accepted that the referee is neutral and results represent the true will of the electorate. And the Independent Electoral Commission has been, by and large, one of our most trustworthy state institutions. But, the last two years have seen serious questions being asked about its neutrality. The latest, and potentially the most serious, are the questions about eight by-elections in Tlokwe, which the Constitutional Court has now ruled were not free and fair. By STEPHEN GROOTES.
In 2013, a group of candidates decided to run as independents against the ANC in eight wards in Tlokwe municipality, in a centre of which is the city of Potchefstroom. The eight independents had made names for themselves as the “Tlokwe Rebels”. They were, in fact, running in the wards which they had previously represented themselves, when they still wore the black, green and gold of the ANC. They had been expelled after refusing to vote in a confidence motion that, as a result, saw the DA wrestle control of the council from the ANC.
In the run-up to the vote, several complaints were made by these candidates. They said they were not given a voters roll with the addresses of those eligible to vote, making it impossible for them to properly campaign. Then, they said that many of the people who were registered to vote should not have been allowed to vote, and were either registered in the wrong ward, or in the wrong voting district. In a local election, this matters, because you run to represent a particular geographic ward, which means that people who vote in the wrong ward are literally guilty of an attempt to fix the election.
After a long travail through the courts, the case in the name of the leader of the rebels, David Xolile Kham, finally arrived at The Hill in Braamfontein. By this stage, one of the applicants had basically lost their way for various reasons, so the case was now reduced to seven candidates. The judgment was written by Judge Malcom Wallis, who was recently appointed to the Supreme Court of Appeal, but was acting on the Constitutional Court in this case. It is unanimous, so he would be allowed some pride in writing for the full court.
The mention of Madiba comes when Wallis explains why the Electoral Court did not hear one of the first objections to these polls, before they were actually held in 2013, when he says the electoral court was “unable to convene to hear the application” because of Mandela’s death. While it is perfectly acceptable to put much of normal life on hold for an event of that magnitude, one wonders if it is really honouring the life of Mandela not to give someone a fair hearing about something as important and fundamental to our democracy as an election.
Wallis goes through some of the tedious detail to illustrate the seriousness of the problems with these elections. One of the points the IEC had made in its response was that there are procedures for candidates to complain if they do not have the information they need. But, says Wallis, they were only given the voters roll seven days before the election, while one of those procedures gives the IEC 14 days to make a decision. Which means the outcome of that process would have been null and void.
He also, naturally, has to go through the process of registration. Here, the IEC conducted its own investigation, which revealed that over 1,000 people were registered in wards where they did not live, more than 300 could not actually prove that they lived where they were registered, and at least 300 more were registered in the wrong voting district. One of the crucial parts of this ruling is where he says:
“What is troubling about this is that there is no explanation of how the incorrect registrations were made. Assume that the addresses given by these voters were inadequate, so that it was unclear in which voting district, and hence in which ward, they should be registered. Why then were they placed in the incorrect wards instead of the correct ones? Was that purely random? It would be surprising if it were.”
Wallis appears to be offering more than just a strong hint that this was the result of a deliberate process, that someone manipulated the system, to make sure that they won the elections. No one specifies at any point who would have done that. But, to use the old political tool to most problems, one can ask “who benefits”. In this case, it was the winner of the by-elections, the ANC. Wallis also points out that around one-twelfth of the people newly registered to vote in these wards did not give any proof of where they lived, and the IEC did not get any information from them to support their claim they were eligible to vote in these wards. He asks simply, “on what basis then, were these voters registered?”
From all of this flows part of the solution, a requirement that is now placed upon the IEC to try to get some proof of an address. But because that can be difficult to do in a nation featuring hundreds of informal settlements, Wallis is careful to make it relatively easy for the IEC. He puts it thus: “That means that the IEC must endeavour to ascertain from the person coming to register an address, where they have a physical address, or some detail that will serve as an address for the purposes of the roll. But if there is none then, provided they are registered in the correct ward, they must be registered and the absence of an address does not affect the validity of the voters’ roll.”
Or, if you prefer, the IEC must try to obtain some proof, but can’t turn away a person who cannot offer that proof. It may be a little un-cut and dried, but it is probably the best that can be done under the circumstances. This may mean that it is harder to bus people in to vote in the future. The DA has made various claims from time to time that the ANC does this. This practice, if it does indeed occur, should be more difficult now. But still, it is far from impossible. And what this judgment does not address in any way is whether or not you could actually stop someone from voting if they have not registered. As Professor Steven Friedman has asked, is the requirement to register really in line with our constitution? Why should someone have to basically apply to vote; it is after all, one of our more fundamental rights.
All in all, this is a judgment that the IEC would have found hard reading. It means that its credibility has been questioned, and found wanting by the highest court in the land. It’s new chair, Glenton Mashinini, also faces the problem that opposition parties believe he is too close to President Jacob Zuma to be fully independent. He will now have to work even harder to remove that perception. Local government elections are now just months away. And the clock is ticking. DM
Photo: An Electoral Commission of South Africa (IEC) official checks a ballot box at a polling station in Alexandra township, Johannesburg, South Africa, 07 May 2014. EPA/CORNELL TUKIRI.