The decision by the Electoral Court to overturn the decision by the Electoral Commission of South Africa (IEC) that Jacob Zuma was not eligible to contest a seat in Parliament came as somewhat of a surprise.

This is so because the original decision seemed to be in line with the plain meaning of section 47(1)(e) of the Constitution which states that a citizen who “is convicted of an offence and sentenced to more than 12 months’ imprisonment without the option of a fine” is not eligible to be a member of the National Assembly.

Unfortunately, the Electoral Court has not yet provided reasons for its decision in the form of a written judgment, which means it is impossible to assess whether the decision was legally sound, or (at the very least) legally plausible. As the court had to give its verdict a day after hearing arguments in the case, and as it will provide reasons in due course, there is nothing untoward about the lack of a judgment at this stage.

I would argue that, similarly, there was nothing untoward in the original decision of the Electoral Commission that Zuma was not eligible for election due to the 15-month prison sentence imposed on him by the Constitutional Court after his criminal conviction for contempt of court. The commission did no more than apply the plain meaning of the applicable provision to Zuma’s case.

At the time, its decision did not seem legally controversial – most knowledgeable constitutional lawyers assumed that it was correct – which means that one would have to be exceptionally cynical or opportunistic to argue that there was something fundamentally dishonest about the original decision, or that the Electoral Commission was biased when it took that decision.

Of course, the Electoral Court has now overturned this decision, and the court’s verdict will stand unless the Electoral Commission or another party with standing appeals to the Supreme Court of Appeal and that court overturns the judgment of the Electoral Court. It will be fascinating to read the court’s judgment to see why it made its ruling and to assess the strength of the court’s reasoning.

The judgment might be persuasive, in which case those of us who thought the meaning of the section was quite clear, would learn something. Or the judgment might be a doozy, in which case it should be appealed.

What is not in dispute, however, is that – from a legal perspective – the Electoral Commission applied what on its face seemed to be a pretty straightforward rule to the matter at hand.

I am belabouring this point because I worry that the Electoral Court ruling will be exploited to try to discredit the IEC and the election more broadly. I also worry about the increasingly desperate and shrill attempts by some politicians and political parties to undermine the legitimacy of the IEC by making unsubstantiated and spurious allegations against the commission to raise public suspicion about its impartiality and honesty.

This year it appears as if the MK party is seeking to outdo even the DA in its attacks on the IEC.

Of course, this is not the first election in which the Electoral Commission is being attacked and – in some cases – preemptively blamed for the disappointing electoral performance of a particular political party. It is also not the first time that many of these attacks are not based on facts, but on fantasies and conspiracy theories. Political parties across the political spectrum are guilty on this score.

In 2014, after a delay in the announcement of the final results in Gauteng, the EFF accused the commission of rigging the election so that the ANC could win Gauteng. 

After its disappointing performance in the 2016 local government elections, some elements in the ANC (who did not understand – or pretended not to understand – how the local government electoral system worked) also blamed the IEC, with then secretary-general Gwede Mantashe outrageously summoning the IEC top brass to Luthuli House to complain.

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It is no surprise that the DA has been one of the biggest culprits in attacking the IEC. In 2016, Helen Zille complained about the IEC and suggested that the vote was unlikely to be free and fair. Before the 2021 local government elections, Zille launched an unsubstantiated attack on the IEC, claiming it had been captured by the ANC. She also falsely claimed that the ANC withdrew from a case in the Electoral Court because “they have been tipped off that the IEC’s application to postpone the election was successful”. (The application was not successful.)

This year it appears as if the MK party is seeking to outdo even the DA in its attacks on the IEC, with some supporters (including so-called religious leaders) even sending a message to the IEC threatening that they will “shut the country for good” and reject the IEC outcomes if they “don’t give MK party a two-thirds majority”.

Predictably, MK is milking its Electoral Court victory, by attacking the IEC, and more specifically by targeting Janet Love, one of the IEC commissioners. In a statement on Wednesday MK accused Love of being biased for confirming in January that section 47(1)(e) of the Constitution made Zuma ineligible for election to the National Assembly, and for not recusing herself “from overseeing the upholding commission process”. (No, I also do not know what this means.)

The accusation of bias is odd, given the fact that the decision to uphold the objection at the time seemed to be no more than a formality. Moreover, it is not clear why a commissioner will be biased if she publicly confirms the legal position that she genuinely thinks is uncontroversial and obvious, in the case where there is not going to be a hearing where all parties will attempt to convince the commissioners of their preferred interpretation.

How having a view about what the clear meaning of a legal provision is raises to bias when one expresses this view in public, but not if one only thinks it in private, is not that clear to me.

In my view the bias argument is a big, fat red herring. But it is a handy red herring with which the MK party can hit the IEC over the head in the hope that it leaves a bad smell, so to speak. If you are intent on discrediting the IEC and – perhaps – ultimately to discredit the election results, any old red herring will do.

I fear that the MK party’s attacks against the integrity of the IEC might be part of a deliberate strategy to erode trust in the IEC and delegitimise the outcome of the election, in which MK is not going to do nearly as well as Zuma and his cronies claim.

What is unconscionable is the tendency of so many politicians to attack the IEC and to question its impartiality without providing any evidence to substantiate their claims.

In other words, I fear that these attacks are part of a strategy to undermine trust in the democratic process and to justify unconstitutional, unlawful, maybe even violent action to “shut down the country”.

I usually take these kinds of threats made by feckless and corrupt politicians with a pinch of salt. This is because I have always assumed that when push comes to shove, such politicians will never risk their cushy jobs and the perks and kickbacks they might bring, let alone a long prison term for insurrection by fomenting or taking part in a violent uprising to undo the outcome of a free and fair election.

But after the riots and destruction following the incarceration of Zuma, and given the fact that some of the people involved in MK are genuine card-carrying thugs, I am inclined not to dismiss these threats out of hand. Hopefully South African voters will not fall for the tactic, and will show some scepticism about what are bound to become ever-more fanciful conspiracy theories about the IEC and about the election.

The leaders of other political parties – including John Steenhuisen and Zille – should also stop their own attempts to delegitimise the IEC.

This does not mean that the IEC is beyond reproach or does not make mistakes. In each election there are bound to be hiccoughs or blunders. I have no doubt there will again be instances during this election where polling stations will open late; where an electoral officer at a polling station will get things wrong and turn some voters away; and where the results from a polling station will not be accurately recorded. Sometimes these mistakes will be of little consequence. At other times they will reflect badly on the IEC.

It is important that citizens remain vigilant and that party agents at polling and counting stations do their job properly to safeguard the fairness of the election. When the IEC makes mistakes, it should be confronted about this and given the chance to fix it.

What is unconscionable is the tendency of so many politicians to attack the IEC and to question its impartiality without providing any evidence to substantiate their claims.

Political parties who indulge in such behaviour are not to be trusted. I would hope that voters would recognise such behaviour as at best cynical and self-serving, and at worst dangerous and undemocratic, and will punish those political parties who launch unsubstantiated broadsides at the IEC. DM