Danger: mind-broadening ahead
18 October 2017 11:18 (South Africa)
Opinionista Pierre de Vos

Come election time, have a pinch of salt to hand

  • Pierre de Vos
    Pierre de vos
    Pierre de Vos

    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.

As the election campaign for the local government election (on 3 August 2016) gets under way, political parties will pull out all the stops to discredit opponents and sell themselves to voters. Some of the methods used by members of political parties to discredit opponents and attract voters will come close to being – or be entirely – illegal.

The Local Government: Municipal Electoral Act 27 of 2000 creates several criminal offences relating to conduct of political parties, candidates and party members during an election, but perhaps a dash of cynicism on the part of voters (and not legal regulation) will remain the best way to counter the shenanigans of political parties and candidates.

When judging whether an election is free and fair, it is important to focus both on what happens in the run-up to the election (during the registration process and election campaign), and what actually happens during the casting and counting of ballots. An election is not free and fair merely because voters are allowed to cast their ballots freely and because these ballots are all counted accurately.

It is for this reason that the Local Government: Municipal Electoral Act prohibits any form of intimidation in the run-up to the election. Section 67 (read with sections 79 and 80) of the act states that it is a criminal offence for any person to compel or unlawfully persuade another person to register to vote, to vote or not to vote, to vote for any party or candidate, or to to attend and participate in, or not to attend and participate in, any political meeting, march, demonstration or other political event.

The section also prohibits almost any other type of voter intimidation as well as any kind of corruption or intimidation of electoral officers or other staff of the Electoral Commission (also colloquially called the IEC).

It will not always be easy to protect individual voters from such intimidation when the voter is in a vulnerable position, either because he or she is being pressured by an employer (farmworkers are particularly vulnerable to such forms of intimidation) or because he or she is pressured or threatened by influential members of the community in which he or she lives.

But where intimidation occurs, any person may approach the Electoral Court to remedy the situation. The court has jurisdiction to hear such cases, to find people guilty of any of the offences stipulated in the act and to impose any appropriate penalty and sanction on the person or party they belong to, including:

  • a formal warning;
  • 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; publishing or distributing any campaign literature; erecting or publishing billboards, placards or posters at or in any place; or receiving any funds from the state or from any foreign sources;
  • an order reducing the number of votes cast in favour of that 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.

The Electoral Court is also empowered to impose harsh penalties in the form of fines or imprisonment ranging from between five and 10 years for breaches of different sections of the act.

In the heat of an election campaign it is expected that politicians and their supporters will engage in robust, heated and even acrimonious debate and argument, and that they will express opinions that are false, only partly true, or difficult to prove. It would therefore be unwise to restrict the right to free expression in any drastic manner during an election campaign as this could have a chilling effect on political debate and political contestation.

However, section 69 of the Local Government: Municipal Electoral Act places some limits on what can and cannot be said during election campaigns. Section 69(2) specifically prohibits any person from publishing any false information with the intention of:

  • disrupting or preventing an election;
  • creating hostility or fear in order to influence the conduct or outcome of an election; or
  • influencing the conduct or outcome of an election.

After the 2014 election the Constitutional Court had to consider the meaning of an identical section contained in section 89(2)(c) of the Electoral Act in its judgment in Democratic Alliance v African National Congress and Another. The majority of judges of the Constitutional Court drew a distinction between statements of fact and of opinion and held that the section only prohibited false statements of fact, not opinions.

The five judges who formed part of the majority argued that the suppression of speech during an election would have “severely negative consequences” on an election, as it would “inhibit valuable speech that contributes to public debate and to opinion-forming”. As the judges pointed out:

Political life in democratic South Africa has seldom been polite, orderly and restrained. It has always been loud, rowdy and fractious. That is no bad thing. Within the boundaries the Constitution sets, it is good for democracy, good for social life and good for individuals to permit as much open and vigorous discussion of public affairs as possible.”

The justices argued that during an election campaign, assertions, claims, statements and comments made by one political party will be “countered most effectively and quickly by refuting them in public meetings, on the internet, on radio and television and in the newspapers”. The robust protection of freedom of expression during elections thus enhances, and does not diminish, the right to free and fair elections.

This means that it will probably not constitute a criminal offence if a political party is accused of being a racist party or of being corrupt. These are opinions that individuals may – rightly or wrongly – hold about political parties and are best addressed by the words and actions of the party accused of racism or corruption, not by censorship.

As Justice Van der Westhuizen pointed out in a separate majority opinion in Democratic Alliance v African National Congress and Another:

In a pre-election environment people are generally aware that political slogans can be highly exaggerated interpretations of facts and that they come from a partisan and subjective viewpoint. In modern-day democracies spoilt by a multitude of media opportunities, political parties formulate punchy, provocative and less-than-accurate sound bites all the time, and are given a wide berth to do so. Perhaps fairly little of what electioneering politicians say is wholly incapable of being labelled as ‘false’ in one way or another.”

As the judges explained, the kind of statement that would constitute “false information” for the purposes of the act would be a statement falsely informing voters that a voting station had been closed. False statements that a candidate for a particular office has died, or that voting hours have been changed, or that a bomb has been placed, or has exploded, at a particular voting station, or that ballot papers have not arrived, or omit a particular candidate or party, would all have the effect of jeopardising the practical mechanics of securing a free and fair election and it would be a criminal offence to make such statements.

However, statements that may be difficult to prove or may exaggerate the shortcomings of a candidate or the political party that he or she represents would not, according to this view, derail the free and fair election in contravention of section 69 because voters (with the help of other political parties) would distinguish between wild and unsubstantiated opinions levelled at other parties or candidates on the one hand, and proven facts on the other.

Another complaint often levelled at political parties during an election is that they “entice” voters to attend their public rallies or other events by distributing food parcels, “travelling allowances” or T-shirts.

It is clearly impermissible for governing parties to use state resources to advance their election campaigns and if they do, it would constitute maladministration and wasteful expenditure. Where the party and the state are conflated in this manner (something that tends to happen more regularly where one party has been electorally dominant for a long period), it gives the incumbent party an unfair advantage over opposition parties and renders the election less fair than it ought to be.

However, political parties in government often justify the use of state resources to distribute food parcels by somewhat implausibly claiming that there is no link between this government expenditure and the political campaigning by the party.

Political parties sometimes also use their own resources to entice voters to attend their public rallies, marches and other events.

This kind of behaviour is not criminalised by the Local Government: Municipal Electoral Act. However, section 87 of the act binds every party contesting an election and every party and ward candidate to an Electoral Code of Conduct. The Electoral Court has the jurisdiction to rule on whether a party or candidate has breached the Electoral Code.

Section 9 of this 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: or
  • to vote or not to vote, or to vote or not to vote in any particular way.

The code does not stipulate what would constitute an inducement or a reward. However, the Prevention and Combatting of Corrupt Activities Act defines an inducement as anything given to a person which is aimed at persuading, encouraging, coercing, intimidating or threatening a person or causing a person to do something or not to do something.

Political parties who offer voters T-shirts, food parcels or “travelling allowances” when they attend their rallies, marches or other public events, will probably argue that this is not done in order to act as an inducement or reward. They will probably argue that one should not underestimate or insult voters by assuming that they could be so easily induced to attend a party event or to vote for a candidate or a party.

As far as I can tell, there is no case law yet on this matter and it therefore remains a grey area. Political parties will probably continue to exploit this uncertainty until such time as the Court provides a definitive interpretation of what constitutes an inducement or reward.

In any event, I suspect these minor issues will not have a conclusive impact on the freeness and fairness of the election campaign.

Far more decisive would be whether the media – including the various radio and television stations run by the SABC (which is by far the most influential and popular media source in South Africa) – treat all political parties fairly and equitably in both what it reports and how much attention it gives to various political parties. But as this is dealt with in different legislation, it is a matter that could be discussed on another day.

As the election campaign gets under way, I for one will take every claim made by every candidate and every representative of every political party with a pinch of salt. Like most other voters I will keep in mind the warning of the Constitutional Court that during an election campaign, politicians often speak in “less-than-accurate sound bites”. In making up one’s mind about which candidate and party to vote for, it is therefore advisable to keep one’s gullibility at bay – at least until after the election. DM

  • Pierre de Vos
    Pierre de vos
    Pierre de Vos

    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.

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