2021 LOCAL ELECTIONS: BEYOND THE BALLOT
Prospects of legal challenges to the polls: Insights from the Constitutional Court’s recent judgment
Earlier this year, the Electoral Commission approached the Constitutional Court seeking an order to postpone the local government elections to a date beyond the constitutionally prescribed time limit. The court dismissed the IEC’s application and the municipal poll is scheduled to be held on 1 November 2021.
The ruling of the Constitutional Court against the postponing of Monday’s municipal elections leaves the process open to legal challenges. Importantly, in dismissing the IEC’s application for a postponement, the court did not hold that the 2021 local government elections will necessarily be free and fair if held within the constitutionally prescribed time limits.
Instead, the court held that the Commission’s constitutional duty is to conduct elections within the constitutionally prescribed time limit and to make the elections “as free and fair as reasonably possible”.
The court makes it clear that after the holding of the elections, a court, if approached by an aggrieved political party or any interested person, will be entitled to set aside all or some of the elections on the grounds that they were not free or fair.
This leaves the door open to after-the-fact legal challenges.
One challenge likely to arise is that South Africans were unable to freely exercise their right to vote in light of the Covid-19 pandemic. A challenge on this basis is especially likely if voter turnout is significantly lower than in previous local government elections. Another is that candidates were unable to freely contest the elections in light of the pandemic and government restrictions on movement and gatherings.
Both free suffrage and the freedom to contest elections are elements fundamental to the conduct of free and fair elections.
Helpfully, the judgment of the court provides guidance on considerations that will inform a court’s determination of any challenge to the elections and the remedies that a court may grant.
In any challenge to the elections, the court emphasises that whether a court will set aside the elections will depend on the circumstances prevailing at the time of the election.
The circumstances that will need to be considered are likely to include:
- The state of the pandemic at the time of the elections, including the numbers of confirmed Covid-19 cases, the rate at which the numbers are increasing, whether there is a resurgence of Covid-19 and the pace of the vaccination roll-out; and
- The restrictions on gatherings and other activities put in place by the government to curb the spread of the virus in the run-up to and at the time of the elections.
Importantly, the court also emphasises that the determination will depend on the standard for free and fair elections which applies in the context of Covid-19. In particular, the court questions, without deciding, whether the standard for free and fair elections is “altered by the Covid-19 pandemic”.
The court refers to and approves its earlier judgment in Kham, in which it held that an election must be assessed in context and that the assessment ultimately involves a value judgment. The court also states that the standard of free and fair elections “must at least to an extent be conditioned by the circumstances prevailing in a country, even if there is an irreducible core”.
Regarding the remedy that a court may grant in a successful challenge to the elections, the court suggests that a just and equitable remedy in terms of section 172(1)(b) of the Constitution (Powers of courts in constitutional matters) may be available instead of re-running the elections. The critical question will be:
“Whether materially better elections could be re-run in the foreseeable future or whether one should rather live with the results of imperfect elections.”
The court emphasised that some elections may be set aside while others may stand. Whether all or some of the elections should be re-run will be informed by the state of the pandemic in the country, the measures in place to curb the spread of the virus, the budgetary constraints of the commission, and the prejudice suffered by voters when their ability to elect new representatives is delayed.
Any challenge to the 2021 local government elections will, therefore, face a couple of hurdles.
First, the standard of free and fair elections may be altered in light of the Covid-19 pandemic, making it more difficult to establish that the elections were not free and fair in terms of an altered standard.
Second, even a finding that all or some of the elections were not free and fair will not automatically lead to the likely desired result — the re-running of the elections. It may need to be established that “materially better elections” can be re-run in the foreseeable future.
This may be hard to do given that the pandemic is likely to be with us for some time and there is uncertainty on the length of time that vaccines remain effective, the need for booster shots and the emergence of vaccine-resistant variants. Another difficulty will be the significant budgetary constraints of the IEC, which will have to be taken into consideration.
South Africans may well have to live with the results of imperfect local government elections. DM/MC
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