For the moment, it appears that the Independent Electoral Commission (IEC) has many critics who claim it has not been able to function properly, that it failed to anticipate there would be elections and that it was unable to deliver on its mandate during the pandemic.

But this may well simply be a function of our fractious society and the divisive political environment it produces. Perhaps the key to deciding how well the IEC is performing would be to ask whether it is following the law, and what other options it would have had when making key decisions.

On Monday the Constitutional Court vindicated the IEC’s position that it was correct to decide to reopen the candidate registration process for the local elections. This came after the DA and other parties challenged this decision.

That challenge stemmed from the earlier Constitutional Court decision that the elections must go ahead this year, despite the IEC’s application for the postponement.

A brief examination of the situation we face demonstrates how difficult the environment is for the IEC: 

It has a duty to provide “free and fair” elections. It has to do this during a pandemic, when many people are scared of voting physically, and pens and ballot papers have to be used. It has to do this around the country and make sure the experience of, and access to, voting is the same for everyone, everywhere.

And it has to do all of this very quickly, by a deadline.

But many of its options are curtailed by law, and its options constrained by politicians.

For example, many countries use a form of electronic voting. This involves going to a ballot box at a polling station and voting on a machine. It’s quick, easy and cheap, and requires fewer resources than moving pens and papers (and counting them) around the country.

But politicians have failed to allow this. This has been brought to Parliament several times, and even during the pandemic politicians have refused to allow a change. This forces the IEC to rely on the older system.

Then there is the timing of the election itself.

While the IEC has been criticised for not being more proactive earlier, it is not clear what it could have done. The only options available were either to change the Constitution or ask the Constitutional Court to postpone the election.

The IEC does not have the power to change the Constitution; the ANC and the other parties failed to enable it to do so. Their reasons for not taking that step might well be perfectly legitimate: this would have been a divisive fight and it is not clear that the Constitution could have been changed, even if the process had started a year ago.

So it took the only other option, which is to approach the court. But before it did that, it took even another step, which was to launch a transparent inquiry into whether free and fair elections could be conducted under the current Covid-19 conditions, chaired by former Deputy Chief Justice Dikgang Moseneke.

And even then, the IEC did not wait until the decision came through. It continued to prepare to hold the elections so it can go ahead on November 1.

Then there is the criticism that comes from the political parties.

Up until this point, much of that has come from the DA, the party that took the IEC to court over the candidate registration issue.

It is not new for the DA to make the claim that the IEC is biased in favour of the ANC. When she was the leader of the DA, Helen Zille was sharply critical during elections. She was certainly not the only one; as the political temperature rises, so the criticism of the IEC grows.

In this case, the behaviour of other parties is important. If all opposition parties believe the IEC is treating the ANC favourably, that might indicate there is a major problem. Here it appears that 10 parties (including the ANC) agreed in the party liaison committee that the candidate registration process must be reopened, and four disagreed (including the DA and the EFF).

The identities of the parties also show that this is not related to identity politics. The DA and the EFF believe the IEC’s decision was wrong; the FF+ agrees with the ANC that the decision was right.

This also suggests that the IEC was correct, that the criticism of its choice here is really about simple politics (and who stood to gain and lose from its decisions), rather than the correctness of its approach.

In some ways, the IEC may well simply be like so many other institutions in the middle of an incredibly divided country. This means that no matter what it does, it is bound to be sharply criticised. This is a function of how divided our society is, as well as our politics, and how high the stakes are. In other words, it is the situation, not the IEC.

Perhaps the easiest way to determine whether the IEC is acting correctly is to ask whether it is following the law.

If it is not, a party will take it to court and win. That has not happened in the case of the candidate registration issue. It did happen in its application to postpone the elections. But remember, there it was also acting in a transparent way, after holding the inquiry chaired by Moseneke.

In the meantime, it is entirely possible that the continued attacks on the IEC have an impact on the way that it is seen, and on the legitimacy of the elections it is running.

There is now in fact some evidence that the continued attack on the IEC over the years has resulted in some damage to its reputation. The latest Afrobarometer survey shows that “only about one in three citizens [36%] trust the Electoral Commission of South Africa, with trust levels particularly low among younger respondents”.

While the IEC was found wanting during the saga over geographic voter registration (the Constitutional Court found the IEC did not have the proper addresses for millions of voters, which would allow people to be bussed into different areas during local elections), there have not been many other issues where it has found itself foul of the law.

This is important because political parties are generally quite happy to go to court if they believe the IEC is doing the wrong thing. So if there are not many judgments against the IEC, logic suggests that it is acting correctly.

The vital question is, if people continue to attack the IEC, does this mean they will reject the outcome of the election, could the outcome simply be seen as illegitimate?

To an extent, this may not matter. It appears that there will be a low turnout for this election (which also contributes to the feeling that the outcome could not be legitimate). And it may simply be a function of how people feel about local government, that it has failed them to a large extent.

What might matter in terms of social stability is in fact whether the parties complain. And for them to complain they will need evidence that will stand up in court. This raises the bar for any complaint.

It is obvious that this is going to be a difficult election, as we are truly in unprecedented times. Even before the pandemic, our political space was reaching a boiling point, brought about by the rise of identity as a weapon, the growth of the EFF, the widening of our radicalised inequality and the not-so-slow-anymore weakening of the ANC.

There are many victims of this process. It appears that the IEC may well be seen as an advantageous point of attack for those who wish us all ill. With the IEC weakening, our democracy would suffer a massive blow. DM