COVID-19 CREATED
A CONSTITUTIONAL CONUNDRUM FOR THE IEC The IEC is required to declare elections free and fair to ensure that democracy is being upheld. But what happens when a pandemic casts doubt on the elections date and voting, rendering such an election unfair before the first ballot has been cast? Anél Lewis considers what the implications would have been had the 2021 elections been postponed
I
n an unprecedented move that could have precipitated South Africa’s biggest constitutional crisis since the advent of democracy in 1994, the Electoral Commission of South Africa (IEC) this year applied to the Constitutional Court (Concourt) seeking permission to postpone the local government elections because of the impact of COVID-19. The IEC required the Concourt to balance citizens’ democratic right to vote with their right to life – both enshrined in the Constitution. However, the ConCourt dismissed the IEC’s application on 3 September, ruling that the elections must go ahead, on any day from 27 October to 1 November 2021. Notwithstanding the outcome, the IEC’s application still poses a significant “constitutional conundrum”, says Professor Erwin Schwella, political analyst and dean of the School of Social Innovation in Wellington. The IEC has argued that it cannot reasonably hold elections that are free and fair this year, given the challenges of COVID-19. “So, if they go ahead as scheduled from 27 October (as per the Concourt’s finding), it would be invidious to declare these elections free and fair.”
CONSTITUTIONAL ALLOWANCES The only way to legally postpone elections is through a constitutional amendment that requires a supermajority of 75 per cent of Parliament’s National Assembly. However, cognisant of the fact that there were objections from some political parties, the IEC instead applied to a competent court to allow it to hold elections outside of the 90-day period required by section 159(2) of the Constitution and section 24(2) of the Local Government Municipal Structures Act. Masego Sheburi, IEC deputy chief electoral officer, says the pandemic prevented a general voter registration drive from taking place as planned in July, so the elections would not be free and fair. “Also, health experts and scientists advised that February 2022 would be a much safer period to organise elections as a significant number of persons would have been vaccinated by then.” Schwella presciently cautioned that there was no guarantee that the Concourt would rule in the IEC’s favour. Speaking before the ruling, Schwella explained that without an authoritative decision – by Parliament or the Constitutional Court – there was no legal authority for the elections not to go ahead.
MOSENEKE INQUIRY The IEC appointed former deputy chief justice Dikgang Moseneke in May to assess whether current conditions were conducive to holding free and fair local government elections. His findings, released two months later in July, concluded that elections this year would infringe on the electorate’s constitutional “right to life, bodily and psychological integrity”. The IEC asked that the matter be decided by 10 September at the latest as it was obliged to continue with its October 27 2021 election timetable and preparations until the proclamation of an alternative date. The IEC must now publish an amended election timetable to meet the outer deadline for the 2021 elections, as set down by the ConCourt.
“There are political opportunists who would have been in a better position if the elections were held in February next year.” – Professor Erwin Schwella
22
VOICE OF LOCAL GOVERNMENT
SALGA36_The pulse_State of Readiness_1.indd 22
Professor Erwin Schwella
IEC’S OBLIGATIONS In the IEC’s court application, Commission chair Glen Mashinini says it is required to hold elections regularly; in this case, within 90 days of the expiry of local governments’ five-year term of office. This means that from 1 November, the current local municipal and metro councils will cease to exist, and any decisions made will no longer have effect. For the IEC to declare the elections to be free and fair, everyone who is eligible must have an opportunity to vote without reasonable restrictions. Also, political parties must be able to compete on equal terms with ample time to canvas for votes. The IEC is also required to ensure that the elections respect and promote the right to life and access to healthcare. Therefore, the IEC’s Constitutional Court application, which considered these requirements, was made in good faith, says Schwella. “They have reason to be concerned. These are unforeseen circumstances, and there are real life-based, economic and social concerns.”
ISSUE 36
2021/09/30 11:27 AM
