The Electoral Commission (also known as the IEC) has a constitutional duty in terms of section 190(1)(b) of the Constitution to ensure that free and fair elections take place in terms of the relevant legislation. It is important that the IEC ensures elections are free and fair and are perceived to be so. When the IEC fails to comply with the prescribed election laws, there is a risk that it could affect the freeness and fairness of the election or could be perceived by some to affect the freeness and fairness of the election (even when the election was in fact free and fair). Did the Constitutional Court judgment this week go far enough to nip in the bud any perception that future elections might not be free and fair?
The Constitutional Court has seldom been confronted with a more intractable problem than the one presented by the case of in Electoral Commission v Mhlope and Others. The Constitution requires the local government election to be held by no later than 16 August 2016 because the Constitution limits the term of Municipal Councils to no more than five years and this term ends on 16 August.
The Constitution does not provide for the extension of this term of five years. The court has broad powers to impose just and equitable remedies on parties before it, but it does not have the power to suspend any provision of the Constitution, including the section that limits the elected term of Municipal Councils to five years.
The Constitutional Court was thus faced with the following problem. On the one hand, the election has to take place before 16 August because the Constitution requires this. On the other hand, the IEC is required by section 16(3) of the Electoral Act to provide copies of the voters’ roll, or a segment thereof, “which includes the addresses of voters, where such addresses are available, to all registered political parties contesting the elections”.
This the IEC cannot do at the moment and cannot possibly do before the election must be held on or before 16 August 2016. It cannot do this because ever since Parliament introduced section 16(3) of the Electoral Act in 2003 (13 years ago), the IEC has not gathered all the available addresses of voters who registered or re-registered to vote. Nor did it make any attempt to gather the available addresses of voters who registered to vote before 2003 and were already on the voters roll.
If the election does not take place before 16 August, Municipal Councils will cease to exist. If the election does take place before 16 August, it will have to be conducted without complying with section 16(3) of the Electoral Act – regardless of how you interpret this section.
As Chief Justice Mogoeng Mogoeng explained in the majority judgment, “(e)very constitutionally permissible solution must thus be explored to avert a looming constitutional crisis that could result from the unconstitutional elongation of terms of office” of Municipal Councils. This potential crisis is not the making of the Constitutional Court, but of the IEC. But this is of no comfort to the Constitutional Court, which has a duty to do what it can to safeguard the Constitution and the democracy.
The majority of the court navigated its way around this problem in the following manner.
It held that the “available” addresses mentioned in section 16(3) does not mean those that the IEC chooses to make available or that happen to have been recorded by the IEC and are thus available to be produced together with the voters’ roll, when it is required by those contesting the elections.
“‘(A)vailable’ means ‘objectively available’ or ‘reasonably available’. This section therefore requires the IEC to record all objectively or reasonably available addresses in the voters’ roll.”
However, the majority found that the requirement that the IEC must provide political parties (including independent candidates) with all available addresses did not require the IEC to gather the addresses of people who registered before the 2003 amendment came into effect. It argued that a free and fair election “is an embodiment of much more than the availability or otherwise of voters’ addresses”.
“It entails curbing intimidatory and unacceptable conduct and language by political parties and their supporters. It also extends to building fire-walls against election-rigging occasioned or facilitated by any lapse or sloppiness on the part of the IEC or violations of the electoral code of conduct by candidates or political parties or indirectly by their proxies.”
The majority held that there is no need to link the freeness and fairness of an election with the requirement to provide all parties with the available addresses of voters. To do so “would have the unintended consequence of overly magnifying the value of and the role addresses play in an electoral process”.
In other words, the majority held that the section 16(3) amendment only placed a duty on the IEC to gather available addresses of all voters who registered or re-registered from 2003. Holding that Parliament intended the section only to have prospective effect, the majority speculated that the choice made by Parliament “might well be grounded on policy-laden, budgetary or polycentric considerations that courts are not privy to”. This does not mean that providing addresses is not important.
“Although it is undoubtedly desirable that every objectively available address be recorded on the national common voters’ roll, the decision to impose that obligation on the IEC in respect of the pre-December 2003 voters is best left to Parliament. Separation of powers requires that courts should be cautious not to intrude into the otherwise exclusive domain of other arms of the state unless it is constitutionally permissible to do so. This is not such a case.”
The majority speculated that if it were to order the IEC to record the pre-December 2003 addresses available as at the time of registration, “that could easily throw our electoral process into a crisis” as political parties and independent candidates could then “easily challenge elections on the basis that the voters’ roll is defective since the addresses they know to be in existence have not been recorded”.
This is not the end of the matter though. Elections still need to be free and fair and if there is any evidence that the election in a specific ward or municipality (or any national election) is not free and fair, the court could intervene in the appropriate manner. In any local government election there is a possibility that political parties (with the collusion of voters) would seek to swing the election in a certain municipality by having its supporters registered in an area where they do not live but where the political party stands to lose the election.
For the majority, this problem would only become acute when evidence surfaced of the fraudulent registration of voters in a ward or municipality where they do not live. If a political party or independent candidates become aware that voters have been registered in a ward in which they do not reside they could provide this information to the IEC which would have to act on it.
The minority Per Madlanga J noted that any political party remained free to challenge any electoral irregularities, by approaching the IEC, the Electoral Court and ultimately the Constitutional Court to rectify the problem. As Madlanga J explained:
“For example, if some of the affected 12.2-million voters are registered in areas other than the districts in which they ordinarily reside, this judgment is no bar to challenges that seek to prevent those voters from voting.”
Given the manner in which the majority dealt with the specific evidence of irregularity in the registration of voters in Tlokwe, the majority seems to agree with this obvious point.
The difference of opinion between the minority and the majority centred on the interpretation of section 16(3) and on whether the lack of available addresses had the potential to affect the freeness and fairness of the election. The minority held that section 16(3) required the IEC to gather all “available” addresses, not only those of voters who registered or re-registered from 2003.
The minority pointed out that there are at least two important reasons for requiring all available addresses to be included on the voters roll. First, a voters’ roll with addresses facilitates visiting and canvassing voters. Without voters’ addresses the ability of candidates to canvass voters is significantly impaired.
“The addresses increase efficiency and make canvassing cost-effective as they assist in focusing campaigns only at registered voters. This is highly beneficial to contestants with modest resources to fund their campaigns. This enhances the accessibility of the right to stand for public office.”
Second, the inclusion of addresses on the voters’ roll enables those contesting elections to verify whether voters are registered in the correct voting districts and thus prevent election fraud. Quoting from the previous Constitutional Court judgment about the Tlokwe fiasco in Kham and Others v Electoral Commission and Another, the minority explained this as follows:
“If voters can be brought from outside, into a ward where the political balance is unclear, their votes may influence the outcome of the election at a ward level and even the outcome of an entire municipal election. We cannot shut our eyes to the reality that there are municipalities that are finely balanced electorally, where the result in a single ward may affect the balance of power in the municipality.”
The minority – taking heed of the fraudulent registration of voters revealed by the Kham case and previous fraudulent registrations in Jozini, KwaZulu-Natal – seemed to be more worried about the possibility of election fraud where all the available addresses of voters do not appear on the voters roll, noting that without addresses on the voters’ roll, the task of verifying registrations would be a lot more difficult.
The minority thus specifically linked the failure of the IEC to its failure in terms of section 190(1)(b) of the Constitution to ensure that elections are free and fair (something the majority declined to do). The minority thus held that if the IEC were to fail to take precautionary measures where – looked at objectively – that failure might lead to elections being unfair, it would be failing in its duty under section 190(1)(b).
The minority judgment is therefore more robust in its approach towards securing free and fair elections than the majority because it interpreted section 16(3) of the Electoral Act to impose a general duty on the IEC to gather all available addresses from voters, regardless of whether the voters registered before or after the 2003 date when the amendment was introduced.
Turning to the remedy, the majority (faced with the difficult conundrum already explained above) resolved the matter in the following manner.
First, it treated the Tlokwe matter (which it already addressed in the Kham case) as a special situation and ordered the IEC to cure the segment of the voters’ roll that applies to the Tlokwe election from the irregularities identified in the Kham case. There is, noted Chief Justice Mogoeng, “no reason why that order was not and cannot be complied with, particularly because it was designed to prevent a recurrence of the irregularities previously detected”.
Second, regarding the rest of the country, the court (as it was required to do) declared that the IEC acted unlawfully by not complying with the requirements of section 16(3) of the Electoral Act and this, the majority held, amounted to a breach of the rule of law that is embedded in our Constitution by section 1(c). (As noted, the majority did not find this to be a breach of the IEC’s section 190(1)(b) constitutional obligation.)
But the majority then proceeded to argue that “although a voters’ roll that does not have addresses poses a potential threat to the fairness and freeness of the elections, that does not mean that elections held in terms of that roll are without more, not free and fair.” In effect, it held that an election is not free and fair when actual irregularities arise, not merely when the IEC fails in a specific instance to comply meticulously with the formal legal requirements for conducting the election prescribed by the Electoral Act.
Although the August 2016 local government elections will have to be held on the basis of a defective voters’ roll, since there is seemingly no time to cure the defect before the elections are held, the court had no choice than to use its powers in terms of section 172 of the Constitution to suspend its order that the IEC’s compilation of the national common voters’ roll was unlawful, inconsistent with the Constitution and therefore invalid.
This suspension was done for a period of 18 months to give the IEC time to rectify its unlawful failure to comply with the law. The suspension of the order was necessary, wrote Chief Justice Mogoeng, because “the postponement of the elections would create a constitutional crisis” as the election must be held no later than 16 August 2016.
But the majority went further. In an unusual move, the court retained jurisdiction over the matter, in effect, to check up on the IEC and to ensure that it complied with the obligation to gather the available addresses of voters within the 18-month period.
It thus ordered the IEC at six-monthly intervals calculated from the date of the order, to file a report with the Constitutional Court, setting out:
The fundamental question raised by the judgment relates to the millions of voters with available addresses registered before 2003 whose addresses were never recorded by the IEC. Although no credible evidence has emerged of fraudulent registrations before 2003, political parties that lose elections may use this lacuna to sow doubt about the correctness of the voters’ roll and ultimately about whether the election was free and fair.
It is for this reason that it would be advisable for Parliament to step in to ensure that the IEC is required to gather the available addresses of voters registered before 2003. It is in the interest of every voter and of our democracy for it to do so. DM
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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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