The deliberations on the scheduling of the 2021 local government have shaped headlines over the last few days as the release of the former Deputy Chief Justice (DCJ) Dikgang Moseneke’s report has indicated he believes that the elections should be delayed to no later than the end of February 2022.
A full detailed discussion on the report has been provided in Daily Maverick by Pierre de Vos where he dissects the implications of what is contained in DCJ Moseneke’s report. The summary of the report is that elections could not be held freely and fair on 27 October and there will be a need for a postponement.
DCJ Moseneke proposes that due to the impracticality of going to Parliament on such a matter it is better if the Electoral Commission of SA (IEC) approaches the Constitutional Court to request an order for extension. As De Vos notes in his article, it would be a significant request, as effectively the court would be asked to suspend a binding provision of the Constitution, namely Section 159(2), which highlights the need to ensure that elections are held within 90 days once the term has expired.
De Vos has thoroughly engaged on the implications of this decision and the difficult position that will then be placed before the Constitutional Court. However, there is one argument which has not been expanded upon which I believe is critical to be interrogated. It relates to answering the following question:
Which democratic part of the state should deliberate and decide on whether or not the October election should be postponed: Parliament or the Constitutional Court?
It is an incredibly important question that has not been answered as it speaks to unpacking core principles under which South Africa’s democracy was founded.
DCJ Moseneke does not believe that Parliament should engage on the postponement of the elections because of practical reasons. Namely, because it would require an amendment to the Constitution with a super-majority of 75% which can take time and which may not necessarily occur.
However, the application to the Constitutional Court will also not be clear-cut. De Vos has unpacked some of the challenges, namely that the court may be “faced with a choice to endorse an unconstitutional postponement of the election, or face the consequences of later having to nullify an election that was not free and fair”.
However, there is also another incredible challenge that the court will face – time. The elections are scheduled to lawfully take place on 27 October 2021. The IEC has not yet approached the Constitutional Court; it is likely to have its legal papers filed in August on an urgent basis.
The court will then be forced to try and return judgment before 27 October. This is hugely problematic because the Constitutional Court will effectively almost be pushed into agreeing that the election should be delayed.
If the court were to rule that elections should not be delayed it would trigger mass panic among political parties, who probably would have put all political campaigning on hold and would then urgently need to ensure that they rally to ensure that they can prepare for the elections.
The IEC would also probably not be prepared and would need to scramble to ensure that it has the resources and staff on the ground ready to facilitate an election.
There is no guarantee that the Constitutional Court will endorse the need to have elections postponed. Yet, as it deliberates, it will have the impending date of the election hanging over it, which places the court in an untenable position. If the court ultimately decides that elections should proceed in October it may then face legal challenges once the election has concluded, challenging whether it was free and fair.
This brings me back to the earlier question, which is whether this decision on the postponement should sit before the courts or before Parliament?
Parliament is made up of the elected representatives of the country representing different communities and political parties. A crucial decision on the country’s ability to hold elections this year is effectively being withheld from it.
Indeed, there are practical realities that Parliament could face in deliberating on the postponement, but if we are serious about ensuring there is proper engagement on the postponement, it must surely come before the National Assembly where political parties should articulate their views and concerns.
The IEC has effectively outsourced its legal argument on the postponement of the elections to DJC Moseneke’s report, which one assumes will now form the basis of its argument before the Constitutional Court.
Yet in all this, the principle of actually which branch of the state should engage on this decision is being ignored. The reason it is not being engaged upon is purely due to the view that it would simply take too long for the parliamentary processes to deliberate on this matter. This line of reasoning is dangerous. It is not practically impossible to focus the efforts of Parliament on this matter.
Instead of placing the decision before elected officials, it would go before the Constitutional Court and in doing so place tremendous pressure on the court to make a decision before 27 October.
Considering the impact that Covid-19 has had on South Africa since last year, the IEC has done this country a disservice in allowing this matter to drag out for so long and now effectively placing the Constitutional Court in an incredibly difficult position. Elected officials should have been debating this matter formally months ago in Parliament so that arguments are well ventilated for the public to engage on. DM
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