In a one-party dominant democracy in which one political party enjoys sustained and overwhelming electoral support, constitutional bodies run the risk of being “captured” by a faction within the governing party. Dominant political parties have indirect access to vast state resources and the dominant faction in that party will often be able to tempt staff of independent constitutional bodies to bend the rules in its favour. If a political party is tempted to use its dominance in this way, the first prize would often be to gain control over the body administering elections as this will help to protect the dominant party against possible future electoral defeat. Hopefully our own Electoral Commission will not fall prey to such shenanigans.
In the contested 2000 Presidential election in the United States of America George W Bush was ultimately “appointed” President of the United States by the US Supreme Court after the inconclusive processing of election results in the state of Florida was halted by that Court. The presidential election in Florida was badly run. In fact, it was a complete shambles and few people will claim that the particular election in Florida was either free or fair.
Although not as bad as the presidential elections held in Azerbaijan last week when detailed election results were published on the Central Election Commission smartphone app – one day before the voting started – I would guess that if elections in Florida in 2000 had been conducted by a truly independent electoral commission and if foreign election observers had been allowed to monitor the election and to intervene to ensure a free and fair election, Al Gore (who “lost” the election) and not Bush (who lost the election) would have been declared the winner.
After a rocky start in 1994, South Africa’s Electoral Commission has widely been lauded for the manner in which it has conducted elections in South Africa and for assisting in the organisation of elections elsewhere on our continent. Unlike in the US – where gerrymandering of constituencies, arbitrary application of election rules aimed at disenfranchising especially black voters, and the venality of some local officials have all cast doubt on the fairness of some congressional and presidential elections – no one has so far raised serious concerns about the conduct of national election by the South African Electoral Commission.
It is against this background that the Electoral Court judgment in Johnson and Others v Electoral Commission and Others raises some concerns about the independence of individual employees of the Commission. The judgment seems to stem from the actions of Dise Makodi, a project co-ordinator of the Electoral Commission, whose actions seem to have led to the disqualification of several independent candidates who wanted to stand in by-elections for various municipal Wards in Tlokwe Municipality. The seats became vacant when ANC councillors who opposed alleged corruption by the Mayor of Tlokwe were expelled from their party for speaking out about the corruption and for supporting a vote of no confidence against the mayor.
A day before the by-elections were to take place, the Electoral Court ordered a postponement of the by-elections in Wards 1, 4, 11, 12 and 20 of the Tlokwe Municipality because of the actions of Makodi. At the original hearing challenging the disqualification of the independent candidates, the Electoral Commission further admitted that it had mistakenly rejected the candidature of the independent candidate for Ward 13 due to a “clerical error” and agreed to postpone the by-election in this Ward. It promised to file a supplementary affidavit in the Electoral Court to explain the “clerical error” but as the Electoral Court remarked (in a judgment written by Wepener – Mthiyane and Moshidi concurring):
“One searches in vain to find such an explanation in the affidavits which were filed…. There is a measure of disquiet that such an important matter as the disqualification of a prospective candidate in an election can be said to be occasioned by a clerical error without any explanation of how such clerical error could possibly occur. This is more so if regard is had to the allegations contained in the founding affidavit that the second respondent’s [Makodi’s] attitude towards the independent candidates changed from helpful to hostile and that he acted with a deliberate bias towards the independent candidates.”
The Electoral Court asked hard questions about the conduct of Makodi, who appeared to have been responsible for this “clerical error” and were placed on “special precautionary leave pending a full investigation by the Commission into his conduct”. It is unclear whether the investigation had been concluded and if it had, whether any further action had been taken against Makodi.
The Commission owes South African voters an explanation about the actions of Makodi that casts a dark spell over the integrity of the Commission. If Makodi was indeed biased in favour of the ANC (as alleged by all the independent candidates), questions should be asked about why this was the case: did political pressure or incentives change Makodi’s attitude towards the independent candidates? Only a thorough and independent investigation will be able to find out.
Be that as it may, the other independent candidates were disqualified from standing in their respective Wards not because of “clerical error” but because they had failed to submit a list of 50 supporting names of voters registered to vote in their Wards as required by the legislation.
Although some of the facts are in dispute, no one disputes that at least some of the independent candidates visited Makodi at the Electoral Commission offices in order to get their nominations in order. They also all handed in their nominations to the Electoral Commission – although some of these nominations turned out to be faulty.
The independent candidates alleged that when they first approached Makodi they found him to be helpful and willing to assist as one would expect of officers of the Commission. After they handed in their nominations, he allegedly promised to check their documents to make sure that all the technical requirements were met. But this he never did. As pointed out above, it is alleged that Makodi’s attitude towards the independent candidates inexplicably changed and he never informed them that their documents were faulty.
The Electoral court found that had Makodi:
“made good on his undertaking to check the documents and advised the applicants timeously of the non-compliance as he was duty bound to do, their rejection as candidates would not have occurred. In that duty …[Makodi]… failed and he caused the applicants’ attempt not to be caught ‘off guard at the proverbial eleventh hour due to some discrepancy or deficiency’ in their applications to be registered as candidates in the forthcoming by-election, to fail.”
According to the Court, staff of the Electoral Commission had a duty to act in a manner that would facilitate the participation in elections. There was therefore a duty not merely to check the validity of nomination documents after the fact but to assist prospective candidates to ensure that they would not be disqualified from taking part in the election on purely on technical grounds.
Where the Electoral Commission fails properly to assist candidates in this way – as it failed to do so in this particular case – prospective candidates would be “severely prejudiced by the failure” and they may be disqualified from talking part in the election, denying many voters the chance to exercise their right to vote in a meaningful way.
Electoral democracy is only free and fair where those who organise the elections are wise enough and honest enough to assist all candidates and parties who register for election fairly while at the same time treating all candidates and political parties in a scrupulously even-handed manner. This places a special duty on those employed by the Electoral Commission to act in a manner that is fair and consistent.
This is especially so in a political context where one political party is so electorally dominant and even the slightest perception of bias in favour of the dominant political party will run the risk of discrediting the electoral process. And when the electoral process is discredited, disgruntled voters will find other ways – including protests and more drastic acts of political resistance – to express their discontent with the status quo. DM
Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.