The question former Deputy Chief Justice Dikgang Moseneke was tasked to investigate was whether South Africa could go ahead with local government elections on 27 October during the Covid-19 pandemic that are free and fair.

As we now know, in the final analysis it was recommended that South Africa should not go ahead with the scheduled elections, with a once-off postponement of 90 days. The elections would therefore be postponed to February/March 2022, which the Electoral Commission of SA (IEC) is now approaching the Constitutional Court for permission to do. 

It is my strong view that Moseneke’s report failed to address the true source of whether the elections should go ahead and placed our democracy’s fate in the hands of a select few.  

My first question when reading the report was, “What constitutes a free and fair election?” 

An election is free when eligible voters have the right to register, vote, and are free to choose whom they vote for. For an election to be free, a voter can decide, for whatever reason, whether they wish to vote and their choice is made without fear or intimidation. A free election is one in which you are confident that your vote is a secret.

A fair election is one in which political parties are able to contest elections, campaign and have meetings and rallies. This allows them the opportunity to try to convince voters to vote for them. Fair elections ensure voters have equal opportunities to register and vote, and that their votes are counted correctly and announced accurately.

Free and fair elections are, by their definition, the political environment and the mechanisms put in place to ensure that voting in a democracy is possible. This is outlined in paragraphs 29-32 of the Moseneke report. 

The Constitution establishes citizens’ inalienable right to free, fair and regular elections, and it is emphasised in the report that the regularity of the elections is a co-requirement of them being free and fair. Elections therefore cannot occur if they do not fulfil the requirements of being free, fair, and regular.

In a Daily Maverick article of 20 May, IEC Chairperson Glen Mashinini said that, “The commission is also confident that the special Covid-19 protocols and measures to be put in place for the elections will provide adequate safeguards… these measures have been tested in over 150 by-elections conducted over the past six months.” 

This answers the question of whether the commission has the mechanisms in place to conduct elections. It clearly does.

So, if the commission is ready to conduct elections and has already done 150 trial runs, proving that we can have regular elections, what prevents them from being free and fair? This is where Covid-19 is placed at the centre of the question of whether free, fair and regular elections can be held. It is also where I depart from the final conclusion of the report because I do not believe that Covid-19 is central to the question of whether free, fair and regular elections should proceed. 

South Africa was afflicted by epidemics such as HIV/Aids, which was also a pandemic, and tuberculosis, and still is to this day, but with less emphasis on these diseases than in the first decade of this century. These diseases killed millions in the country. We are currently infected by the socioeconomic epidemics of unemployment and poverty, both killers in their own right. 

It is my view that it is not Covid-19 that prevents free and fair elections, but rather the irrational and illogical regulations created by the National Coronavirus Command Council (NCCC).

Paragraph 25 of the report reveals how the IEC itself puts government regulations at the centre of the reasons not to hold by-elections in 2020/21, citing the lockdown levels and regulations as reasons for not conducting some by-elections and only conducting by-elections during lockdown Level 1.

But a key thing to bear in mind is that we are yet to establish what scientific evidence any of the NCCC regulations are based on. For example, what scientific basis was there for the banning of cooked chicken, open-toed shoes and other select apparel to prevent the spread of the virus? How does closing wide open spaces like beaches, parks and hiking routes prevent Covid-19 transmission? What sense was there in stopping people from exercising when exercise is probably what prevents many from having serious Covid-19 symptoms? I am sure that not a single scientist would bet their careers on defending these decisions. 

And if the regulations are not based on science, are irrational and illogical, then the Moseneke report is based on an incorrect premise entirely because it is not Covid-19 that prevents us from having free and fair elections, but rather the NCCC’s regulations that steer the decision-making — and we have already established that those regulations are not based on scientific data.

We are now in Adjusted Alert Level 3 which prevents large gatherings of people in general and specifically for political rallies and funerals. Yet, at a vaccination site in Cape Town, at the CTICC, on a daily basis there are about 1,000 people queuing to get into an enclosed space to get the Covid-19 vaccine. 

Is this not the definition of a super-spreader event? No, it is not, for the same reasons the commission is sure it can conduct the elections on 27 October. It is controlled by staff, people observe social distancing, wear masks and are properly sanitised at various points, with face-to-face registration occurring without fear of transmission.

Yet, Professor Shabir Madhi, one of the nine scientists who has input into deciding the fate of our democracy, says in paragraph 52 of the report that “any indoor gatherings of more than 20 people will have a major impact on the resurgence of infections”. However, paragraph 38 of the report says, “The virus is not well understood. There is insufficient knowledge, even at this stage, about the transmission trends, the ability of the virus to cause infections, and the changing nature of the virus.” The contradictions in the scientific opinion are apparent. 

It is clear that, if the IEC were to conduct elections on 27 October, by its own admission, it is technically ready to do so without any fear of creating super-spreader events. It is therefore evident that the only impediment to having regular, free and fair elections are the regulations created by the NCCC, which are not based on scientific evidence or fact. 

Further, the NCCC consists of powerful political appointees who make decisions motivated by a political agenda. It is therefore my opinion that the Moseneke report misses the mark entirely. Where it should have relied more on stakeholder input, it decided to depend on the opinion of nine scientists, putting our democracy dangerously at the edge of the abyss. 

The NCCC is stonewalling the democratic system of this country, putting far more than the short-term wellbeing of its citizens at risk. Postponing the already agreed upon and mandated election date, based on unsubstantiated assertions, affects lives, livelihoods and our economic future. It also negates our democratic principles and the alleged freedoms bestowed on every South African by our Constitution.

This decision has tremendous potential to start South Africa down a path that cannot be easily rerouted. One that ends in sheer hopelessness and failure for the state, its people and any kind of positive future for the country. DM/MC

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