It’s a carefully phrased argument Cosatu presented to Dikgang Moseneke, the retired deputy chief justice heading the inquiry into free and fair elections during Covid-19.

The trade union federation’s first choice would be to hold the municipal poll as scheduled in late October 2021. But if health and safety make this impossible — and it is science and medicine, not political parties that determine this, Cosatu emphasises — a backup plan is necessary.

That Option B is for the Electoral Commission of South Africa (IEC) to apply to the Constitutional Court for a once-off strictly delineated postponement to some time in the first three months of 2022, most likely February/March. 

Such a postponement would be in line with the constitutional imperative of preserving life, particularly as the roll-out of the Covid-19 vaccines has been so slow and obstacle-ridden that it has seen fewer than 5% of the population inoculated to date, rising to between 25% to 30% by end of October. 

It’s nowhere near the 67% inoculation level needed for immunity that would ensure people were not too afraid to cast their ballots, possibly leading to minuscule voter turnouts that would undermine the poll’s credibility. Hence the consideration for a postponement of the 2021 local government elections to February/March 2022 by when population immunity might have been reached.

“A big enough delay to allow the vaccine roll-out to take place, not too long for incompetent councillors to remain in office,” is how Cosatu parliamentary liaison officer Matthew Parks explained it to Moseneke during Tuesday’s live-streamed proceedings.

“If you postpone it once, you cannot postpone it again. That’s sacrosanct… We are confident, despite all the gremlins (in the vaccine roll-out), we will reach 67% immunity by Christmas.”

Precedence exists for a limited postponement. The 1 November 1995 municipal poll in the Western Cape was delayed to 29 May 1996 over various demarcation disputes around what was ultimately to become the Cape Town metro.

The 1995 local government election was also postponed, to 26 June 1996, in KwaZulu-Natal over demarcation disputes, but the impact of political violence also played a role.

In 2020, all by-elections were postponed during the lockdown to save lives. The constitutional requirement, principles and legal necessities for by-elections are the same for the local government poll.

“It’s a difficult one,” acknowledged Parks. “The IEC struggles in informal areas and townships. There are always long queues, the zip-zip machines run out of batteries… There’s always a story. How will it be in a pandemic when the smallest mistake puts lives at risk?”

It’s a difficult place — not just for the IEC, but South Africa — where systems of governance seem to be slowly eroding under the stress of an almost 16-month State of Disaster and uninterrupted Covid-19 lockdown that on Wednesday marks Day 462.

Section 159 of the Constitution states “the term of a municipal council may be no more than five years”. It also sets a 90-day window on either side of the last poll for the next elections. 

That window is 4 August to 1 November 2021 for this year’s local government elections. The scheduled 27 October date is already quite far into this constitutional window. It’s understood much of the IEC planning is based on Level 1 Covid-19 lockdown restrictions.

The reality is that time’s just not there for a constitutional amendment. Even when all lawmakers agreed it was time to abolish floor-crossing, or the taking along of one’s legislature or council seat when joining another political party, it took eight months to process this constitutional amendment.

Four months are left to the scheduled 27 October local government date.

Approaching the Constitutional Court at this point to request condonation of a postponement may be an option, particularly given the 1996 precedents. But that won’t happen until after 21 July, the date Moseneke indicated in his report on whether free and fair elections were possible in the Covid-19 pandemic.

“Justice Moseneke will undertake an urgent appraisal of all the relevant legal, socio-political, health, practical and other considerations and submit a report… (that) may also make recommendations of additional measures to further fortify the integrity and safety of the elections,” was how the IEC put it when it announced the inquiry in May.

While the IEC says it is ready, prepped and able to conduct the October 2021 local government elections, South Africa is not an exception in trying to get to grips with Covid-19 and democratic cornerstones such as elections. 

In August 2020, New Zealand delayed its national elections by a month to 17 October 2020 after large parts of the county were put under a strict Covid-19 lockdown. 

Between 21 February 2020 and 21 June 2020, at least 41 countries worldwide had postponed national elections, and 37 more postponed subnational polls, but 125 countries and territories decided to go ahead, according to the International Institute for Democracy and Electoral Assistance (International IDEA).

Within this period, at least 55 of the countries and territories that initially postponed national polls and/or referendums, proceeded to hold them.

In South Africa, the EFF has long agitated for a delay in the municipal poll, even meeting the ANC in 2020 to gain support for this delay — and merging all elections to the same day. 

Its argument is that the elections won’t be free and fair given the Covid-19 lockdown restrictions on electioneering, such as door-to-door campaigns, community meetings and rallies.

The Electoral Institute for Sustainable Democracy in Africa (Eisa) argued in its written submissions that the IEC had to consider both the health and political rights of voters.

Without these events, the EFF’s “election campaign is dead in the water”, according to its written submissions. “… (T)he EFF would be in no position to influence voters, and in no position to convince those who are not registered to vote to go register.”

The DA disagrees, saying the local elections must go ahead with all proper safety protocols observed given that despite Covid-19 lockdowns it had been possible to develop different campaigning strategies — and to hold by-elections. 

The ANC has taken a similar view in its written submissions, saying no reasons existed to postpone elections unless the Covid-19 pandemic worsens. And then it would abide by the IEC decision.

“We believe that should Covid-19 become much worse in terms of infections and mortality rates, the IEC would be best placed to approach the Constitutional Court for a limited postponement due to the impossibility of holding safe elections.

“Should elections be deemed impossible, our preference would be for a postponement only until the beginning of December, and at the latest to the end of February 2022…”

Several civil society organisations focusing on matters constitutional and electoral caution believe that a postponement of October’s municipal poll can only be considered on scientific and expert medical advice — and only as a last resort.

The Electoral Institute for Sustainable Democracy in Africa (Eisa) argued in its written submissions that the IEC had to consider both the health and political rights of voters.

“Evidence from other countries suggests that a first postponement can more easily lead to subsequent further postponements and elevated levels of uncertainty and constitutional incongruence.”

The Helen Suzman Foundation wrote that “a course of action that avoids delay is most desirable”, but acknowledged that the IEC should be able to exercise an option to delay the poll if the Covid-19 situation proved “of such a disastrous nature in the country in general”, it would have a “potential material effect on the freeness and fairness of the elections”.

The Council for the Advancement of the South African Constitution (Casac) is opposed to a postponement, but qualifies this, given the circumstances of the Covid-19 pandemic. 

“… while postponement should remain an option open to the IEC, it must only be as a matter of last resort where the conditions are such that, guided by expert evidence, the IEC is unable to conduct credible, free and fair elections without putting the lives of the electorate and electoral staff at risk.”

The question for Moseneke is how to find what he called that sweet spot — the convergence of public health and safety in a pandemic, not opening the door to the potential of rolling postponements and upholding free and fair, regular elections that are part of South Africa’s constitutional founding values.

It’s no mean feat. DM