‘An Extraordinary Solution’: Constitutional Court rips up Tlokwe’s Gordian election knot
- Stephen Grootes
- 15 Jun 2016 12:26 (South Africa)
When it comes to the nitty gritty of democracy, voting wards and proportional representation, voting rolls and the Electoral Act, the Electoral Commission and independent candidates, nothing can be more complicated than the Tlokwe case. It started as a molehill. Yesterday, the mountain that it has become was resolved in the Constitutional Court. Almost everyone has gone away happy. While that is sometimes a bad sign, an indication that nothing has been resolved, this time it's different. Our electoral law will now be different, the IEC will behave differently. It has no choice. And it should not be celebrating. Yesterday's ruling was confirmation, judicial confirmation, that it has behaved badly, that it has let us down. It has a lot of work to do. By STEPHEN GROOTES.
David Xolile Kham. Savour the name. You may not have heard it before; if you have, you are in a minority of South Africans. You will be hard-pressed to find a photograph of him. But his name is now going to be remembered among the others that have done so much to improve our democracy.
Like Irene Grootboom and Alex Carmichael who went before him, his perseverance is going to lead very real change. It is because of him, because of his small band of followers in Tlokwe in North West, and because of their attorney Hans-Jurie Moolman (who is also, interestingly, the head of the DA Caucus in Tlokwe) and others, that from now on, the way we conduct elections will change.
To use the words of Chief Justice Mogoeng Mogoeng, this was an “extraordinary case”. On one side was the demand, from Kham and others, that the IEC include the address information of voters on the voters’ roll. Then there was the response from the IEC that it would be impossible to do that before the local government elections, it would take four years to comply with an Electoral Court interpretation of the Constitutional Court’s first decision on this, and it should not allow people to lose the right to vote. The response from Kham’s band of independent candidates was that there was no point to the right to vote if elections could be rigged, if people could vote in wards in which they did not live. To add to the fun, inevitably, were a whole clutch of political parties who wanted everyone to think it was they who were ensuring that no one lost their right to vote.
Mogoeng, writing for the majority, had to employ “an extraordinary solution”.
First, they find that the IEC had to live up to the law. That when the Electoral Act used the phrase “available addresses” it did not mean addresses that “happen to have been recorded by the IEC and are thus available to be produced”. What he means is, “available” means “objectively available” or “reasonably available”. In other words, all reasonably available addresses must be made available.
The IEC’s failure to do that is writ large all through this judgment. Mogoeng explains that, “With the benefit of hindsight and proper reflection, the IEC now accepts that  the 2003 amendment obliged it to record the objectively available addresses of voters on registration.” In other words, it has finally now realised that it was wrong. It’s interesting that Mogoeng is so gentle about it, but perhaps he wanted to avoid the perception that the court was punishing the commission in any way.
He also, correctly in the view of this writer, finds the need to calibrate the importance of this quagmire. We live in a political environment in which some politicians, particularly those with a close affinity to the part of the colour spectrum that is bright red, are becoming tempted to reject the outcome of an election. For them, this kind of ruling could be very useful, as it could camouflage their real intentions.
Mogoeng sidesteps this by making an important point. He says this:
The concept of the freeness and fairness of the elections is an embodiment of much more than the availability or otherwise of voters’ addresses. That is why our elections have in the past been correctly declared to be free and fair despite the fact that millions of voters in villages and informal settlements did not and still do not have recordable addresses available. This concept entails curbing intimidatory and unacceptable conduct and language by political parties and their supporters. It also extends to building fire-walls against election-rigging occasioned or facilitated by any lapse or sloppiness on the part of the IEC or violations of the electoral code of conduct by candidates or political parties or indirectly by their proxies. It is inappropriate to base a declaration of constitutional invalidity on the link between the possible absence of freeness and fairness of the elections and the failure to record voters’ addresses. To do so would have the unintended consequence of overly magnifying the value of and the role addresses play in an electoral process."
In another section, he takes this even further, referring to the court's previous decision in the case known as “Kham” (there’s that name...) when he says, “...and it is necessary to add only that Kham is no authority for the proposition that the mere absence of addresses, on its own, renders an election unfair”.
To put it into slightly less legal language, he is saying that the judgment of whether our elections are free and fair does not fall on just this issue. He also points out in a different section that while the IEC may have a duty to ensure the availability of elections, the fact that it has not does not mean that previous elections were not free and fair. This is crucial; it does not follow that because the IEC did not do everything it possibly could to prevent vote-rigging, that vote-rigging actually occurred.
However, the problem facing the court was that while it was all fine and good to find that the IEC had breached the Constitution by not complying properly with the Electoral Act and the court's previous judgment, sorting out the remedy was going to be a mission. The IEC had said on the record that it could not get all the addresses it needed to run August’s elections. And, of course, we all know that this is a country that cannot wait past August for an election: our politics needs the release those polls will bring.
And so, the court has given the IEC 18 months to deal with this. In technical terms, it has “suspended” the finding. This means that the elections will go ahead, with the flawed voters’ roll. There is a concession by the court that this is a not a perfect solution. But it will be acceptable to all parties.
However, there is an important caveat. That suspension does not apply to the contested wards in Tlokwe. The elections there on 3 August have to use the new system, a voters’ roll where the address details of voters have been recorded. Presumably, this is because there is a long and legally documented history of problems in those wards. And of course, it will go some way to mollify the Tlokwe Independents who brought this challenge in the first place.
And so, after the ruling, everyone seemed to rejoice. The IEC breathed again, the Tlokwe Independents were vindicated by the highest court in the land for a second time, the political parties all claimed victory, and Co-operative Governance Minister Des van Rooyen welcomed the judgment.
He then claimed that this whole address issue was only because of apartheid.
When everyone celebrates a judgment, one should pause. It means there are no losers and thus no winners. What it often means is that everyone is going to interpret it in their way, and thus they are happy for the moment, only to be disappointed later. Our recent history with this, say the Nkandla ruling, suggests that all that really matters is how those in power interpret it. In this case though, it seems likely that this ruling will be implemented. To the letter in fact. Everyone now knows about it, everyone knows what the IEC is supposed to have, and what it is supposed to provide. Crucially, those with an interest in this, the political parties themselves, will be watching closely.
But looking through the celebrations, it is the Electoral Commission that has lost. First, one of its own officials refused to nominate the Tlokwe Independents. They lawyered up. Then when they complained about the lack of address information, they were ignored. They had to fight, and fight hard, against an organisation that seemed determined to interpret the rules of the game in such a way as to prevent them from playing.
This behaviour is less than what we expect, but it is also less than what we deserve. The IEC has a mandate to enhance democracy; it should be helping new players, within the law, not trying to stop them. There is much to ask here; what is it about the organisation's internal culture that saw no one taking the candidates seriously, why did it refuse to back down all through the process, only to finally concede in court that its interpretation was wrong?
More important, can it claw back the credibility it has lost? I believe it can. And that it will. But it must show that it is willing to do the hard yards that it will take. DM
Photo: Independent Electoral Commission (IEC) voting officials prepare a voting station for some of the millions of South Africans to vote in the early morning light at a church in the poor slum of Alexandra Township for the local elections, Johannesburg, South Africa, 18 May 2011. EPA/KIM LUDBROOK