On Friday President Jacob Zuma announced that South Africa would go to the polls on 7 May this year. In the next three months political parties campaigning for our “dirty votes” (to quote a certain Premier) will promise us the world (and give some of us the odd T-shirt or food parcel) while accusing their opponents of the most shocking motives and vilest behaviour. It may therefore be helpful to familiarise ourselves with the ground rules of political campaigning set out in the Electoral Act before the fun starts in all earnest.
In South Africa, the legal rules governing the conduct political parties and the electoral behaviour of members of political parties are surprisingly permissive. Perhaps because post-Apartheid elections have so far been relatively peaceful, because the main political parties in the past have not advanced any truly controversial or radical policies and because the outcome of the election had never been in doubt, the election rules do not place major restrictions on what political parties and candidates may say and do during an election campaign.
For example, there are no rules regulating the raising or spending of money by political parties, either before or during an election. In theory this means a political party could receive a donation of R10 billion from the CIA, from the Chinese government, from an arms manufacturer or from a large mining company and can spend all that money on an election campaign in exactly the manner the party sees fit.
Furthermore, unlike in some democracies (like Germany), at present South African electoral law does not prohibit a political party from advocating the overthrow of the democratic system of government or from advocating the illegal and undemocratic suspension of the Constitution.
A political party who promises voters that it will undemocratically and unlawfully suspend the Constitution and will never conduct democratic elections again “to protect the revolution” are just as free to campaign as parties who pledge their solemn support and allegiance to the Constitution.
There is therefore currently nothing in the electoral Act that would disqualify Julius Malema’s Economic Freedom Fighters (EFF) from taking part in the election because a clause in its Constitution states that:
“The basic programme of the EFF is the complete overthrow of the neo liberal anti-black state as well as the bourgeoisie and all other exploiting classes; the establishment of the dictatorship of the people in place of the dictatorship of the bourgeoisie and the triumph of socialism over capitalism. The ultimate aim of the EFF is the realisation of socialism through people’s power and the establishment of a state that responds to the needs of its people.”
When the EFF in effect promises to ignore the Constitution by expropriating land without compensation (in conflict with the provisions of section 25 of the Constitution), this is similarly not in conflict with the electoral laws.
However, in terms of section 16 and 17 of the Electoral Commission Act, the Electoral Commission must refuse to register a political party or must cancel the registration of a political party if the name, abbreviated name, or symbols of the party
“portrays the propagation or incitement of violence or hatred or which causes serious offence to any section of the population on the grounds of race, gender, sex, ethnic origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture or language; or which indicates that persons will not be admitted to membership of the party or welcomed as supporters of the party on the grounds of their race, ethnic origin or colour.”
This section does not refer to the Constitution or policies of the political party. Nor does it refer to the utterances of its leaders or members – only to the various forms of its name and its symbols.
This means a political party cannot be deregistered in terms of these sections of the Electoral Commission Act because its leaders engage in hate speech or make statements that upset certain sections of the public. The leaders may, of course, be found to have contravened the hate speech provision of the Equality Act and may be prohibited by the Equality Court from indulging in forms of hate speech.
Every party contesting the election and every candidate taking part in the election is required to subscribe to the Electoral Code of Conduct and is legally required to comply with it.
Every registered party must also instruct its candidates, persons who hold political office in the party, and its representatives, members and supporters, to comply with the provisions of the Code and the applicable electoral laws. Candidates have a similar obligation to instruct their representatives and supporters to comply with the Code. It is highly debatable whether political parties and their leaders do enough to ensure that everyone is familiar with the provisions of the Code.
However, the Code of Conduct focuses narrowly on the kind of statements and conduct of political parties and candidates that could actually may have a negative effect on the peacefulness, freeness and fairness of the election. Within these parameters the Code allows political parties and their candidates a wide margin of appreciation to say and do what they want to impress or sway voters.
Quite frankly, it’s a bit of a free-for-all.
Thus the Code prohibits registered parties and candidates from using language or from acting in a way that may provoke violence during an election. This section is narrowly tailored and does not refer to hate speech or other forms of incendiary or hurtful or harmful speech that might target a specific group based on their race, sex, gender, sexual orientation, belief or opinion.
These permissive provisions of the Code of Conduct thus allow robust, forceful – even painful and (for some) scary – political rhetoric to flourish during an election campaign, perhaps in the belief that such forceful electioneering will allow voters freely to make up their own minds on who to vote for (or not to vote for), unhindered by the heavy hand of an election censor.
For example, if a candidate for the African Christian Democratic Party (ACDP) – does the party still exist? – were to channel his or her inner bigot by railing against “perverted homosexuals”, there is nothing in the Code of Conduct that would prohibit such speech.
Similarly, if an EFF candidate were to warn that the “honeymoon is over for whites”, this too won’t fall foul of the Electoral Code.
The Code is far stricter in regulating the behaviour of parties and candidates in order to ensure that voters are not intimidated, misled or bribed to vote for a specific party. Once again the aim seems not to limit robust and event rambunctious campaigning, but rather to prevent an abuse of the system.
The Code thus prohibits registered parties and candidates from intimidating other candidates, members of parties, representatives or supporters of parties or candidates, or voters. Publishing false or defamatory allegations about a party, its candidates, representatives or members is also prohibited.
A much-abused section of the Code prohibits any person from offering “any inducement or reward” to another person to join or not to join a party; to attend or not to attend a public meeting, march, demonstration, rally or other public political event; to vote or not to vote, or to vote or not to vote in any particular way; or to refuse a nomination as a candidate or to withdraw as a candidate.
This means political parties who offer potential voters free food, free T-shirts, free panties or other free goodies to lure them to rallies or other election events act in breach of the Code. However, this section is difficult to enforce because political parties argue that the free food or T-shirts are not given as “inducement or reward” to lure people to rallies, but are handed out to voters who would have attended the rallies in any case.
Political parties can probably only be pursued for breaching this section of the Code if the inducement or reward is provided to the potential voter before he or she arrives at the rally.
(Section 87 of the Act also prohibits anyone from intimidating a voter to vote or not to vote for a political party or to attend or not to attend its rallies.)
The Code, aiming to ensure peaceful campaigning, also prohibits any person from carrying or displaying arms or weapons at a political meeting or in any march, demonstration, rally or other public political event.
In practice, the biggest challenge to conducting a free and fair election at grassroots level is the political intolerance displayed by the supporters of one political party against other political parties. For this reason the Code of Conduct prohibits any person from unreasonably preventing any other person access to voters for the purpose of voter education, collecting signatures, recruiting members, raising funds or canvassing support for a party or candidate.
All these provisions are difficult to enforce against political parties and those who work formally or informally to promote the interests of a specific political party across the vast expanse of South Africa. The law, alas, is a blunt instrument to create and enforce a tolerant political culture.
But in theory the law can be used to protect the space within which free and fair campaigning can take place. The Electoral Court plays an pivotal role in this regard. It has wide powers to “impose any appropriate penalty or sanction” on a person or party who contravenes the provisions of the Act or the Code of Conduct when it believes it is in the “interest of a free and fair election”.
In terms of section 96 of the Electoral Act such penalties and sanctions can include: a formal warning; a fine not exceeding R200,000; and the forfeiture of any deposit paid by that person or party.
The Electoral Court may also issue an order prohibiting that person or party from using any public media; holding any public meeting, demonstration, march or other political event; entering any voting district for the purpose of canvassing voters or for any other election purpose; erecting or publishing billboards, placards or posters at or in any place; publishing or distributing any campaign literature; electoral advertising; or receiving any funds from the State or from any foreign sources.
The Electoral court even has the power to issue an order reducing the number of votes cast in favour of an offending person or party; an order disqualifying the candidature of that person or of any candidate of that party; or an order cancelling the registration of that party.
In theory this means that where a political party or its representatives systematically abuse the system and refuses to adhere to the Electoral Act and its Code it can effectively be disqualified from the election by having its registration cancelled. This is an extreme sanction which may affect the legitimacy of the election and I would be surprised if the Electoral Court ever makes use of this power.
Ideally political parties themselves should promote political tolerance and should educate their members about the need to adhere to the provisions of the Electoral Code. Whether they always have the political will to do so is another matter. 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.