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IEC: Legal clarity is needed, and fast


Mmusi Maimane is leader of Build One SA.

If the August deadline is missed for the impending local government elections, we will find ourselves in a constitutional impasse that has never occurred in our democratic dispensation.

At its core, democracy rests on one simple tool by which the citizens exercise their power: the vote. The vote is the foundation of democracy. The vote is the primary tool through which citizens hold the government accountable, and the mechanism by which governments are hired and fired. 

It goes without saying that the processes and institutions that regulate how “the vote” is exercised are an integral part of a healthy democracy. In fact, they are essential to it. That is why section 190 of our Constitution seeks to ensure constitutional democracy by establishing an electoral commission that manages elections and ensures that elections are free and fair.

Both the Constitution and the Electoral Act envisage a robust Independent Electoral Commission (IEC) that can ensure elections occur timeously, are free and fair, and are above reproach. In addition, the IEC ought to instil confidence in the election process, and must be independent, impartial and well managed.

It is against this backdrop that we must assess the latest pronouncement by the IEC which calls into question whether it will even be possible to hold this year’s local government elections.

On Tuesday 23 February, the Electoral Court postponed the much anticipated municipal by-elections in six separate wards in Tlokwe, giving the IEC six weeks to correct certain irregularities regarding the voters’ roll.

This decision prompted the IEC to institute a blanket postponement of all the imminent municipal by-elections scheduled for the following day in four provinces across the country: KwaZulu-Natal, Limpopo, North West and the Western Cape.

While any postponement or delay in an election is not ideal, it is the reasons given for the postponement that are the most concerning in light of this year’s local government elections.

In a statement released on 24 February 2016, the IEC said the following:

[W]hile the orders only related to the six wards in Tlokwe listed in the court application, the Electoral Commission considered a postponement in the interest of free and fair elections noting that all by-elections share similar circumstances as those ordered for a postponement by the court.” (Emphasis added)

This decision and its reasoning show the IEC to be in an invidious position. While the standard and legitimacy of the upcoming local government elections cannot be compromised in any way whatsoever, a potential constitutional crisis is looming if the August deadline is missed for the elections.

Constitutionally, an election must be held within five years and three months of the previous one. That election was held in May 2011, so August 2016 is the latest possible month in which they can be held.

The manner in which the IEC handled the Tlokwe debacle is cause for serious concern. The IEC has known about the ramifications of the Tlokwe case since the Constitutional Court’s finding last year, and yet it still has failed to fix the irregularities.

Moreover, if the conditions of an Electoral Court decision relating to Tlokwe were superimposed on all by-elections by the IEC, will this now apply to every ward, in every municipality and metro across the country in the local government elections?

There is much uncertainty surrounding this issue, yet one thing is clear: if these conditions are to be applied and enforced ahead of the polls, we will almost certainly miss the August deadline. 

If the August deadline is missed, we will find ourselves in a constitutional impasse that has never occurred in our democratic dispensation. Thus, legal clarity is needed, and fast.

Logistically and practically, it seems virtually impossible that the IEC will be able to roll this out and be ready to conduct free and fair elections ahead of the August deadline.

But above questions of process, delays and postponements in elections are injurious to opposition parties and to functional democracy. It is no secret that the ANC is facing defeat in several key metros in the local government elections. The fact is, widespread voter anger over service delivery and corruption put the ANC squarely on the back foot. It is thus imperative for the sake of our democracy that the IEC takes strong and decisive action.

The IEC’s announcement yesterday that it is preparing “an urgent appeal of the Electoral Court order at the Constitutional Court” to “provide the necessary clarity and certainty regarding its original ruling and the obligations of the Electoral Commission” is well intended and must be welcomed.

Having said that, the DA will closely assess the IEC’s papers to satisfy ourselves that the IEC is indeed acting in the best interests of free and fair elections, and is truly committed to ensuring that this issue is resolved in time for an election before the August 2016 deadline, so as to avoid a constitutional crisis.

Without certainty and clarity in this cornerstone of democracy, we are heading down a dangerous path that threatens to delegitimise the basic right to vote for which so many struggled. DM

Mmusi Maimane MP is the Leader of the Democratic Alliance.


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