The Electoral Commission (IEC) heads to the Constitutional Court this week to ask its blessing in delaying the local government elections from October this year to February 28 next year, citing the difficulties of holding free and fair elections during a pandemic.
Nearly a dozen political parties and non-governmental organisations (NGOs) have been admitted as either intervening parties or friends of the court, most of them arguing against any delays on the grounds that local government is dysfunctional and must be repaired without delay.
The Electoral Commission’s case rests largely on the so-called Moseneke Report, which made various recommendations to reduce the potential for transmission of Covid-19 by, for example, extending voter registration, expanded special voting arrangements for the ill and vaccinations for poll workers.
It also recommended delaying the elections from October 2021 to February 2022 as it felt the elections would not be free, fair and safe if held in October this year.
The Constitution of South Africa requires an election to be held within 90 days of the expiry of the term of municipal councils.
The Electoral Commission’s recommended date of February 28 2022 falls outside this 90-day window, which is why it has approached the Constitutional Court for its blessing or, in the alternative, to declare its actions (in delaying the elections) as unconstitutional, but defer the issue any order to this effect after February 28 2022 – which is, in effect, a “mischievous” side-step of the Constitution according to some lawyers involved in the case.
Even the medical experts canvassed in the Moseneke report could not agree on whether the election should be held in October or February next year.
Tim Tyrell, project manager at Organisation Undoing Tax Abuse (Outa), says recent social disruptions in KwaZulu-Natal and Gauteng, including Covid-19, are insufficient justification for delaying the elections.
“While there are challenges to the smooth rollout of these elections, these are far outweighed by the critical importance of holding these elections properly and on time,” says Tyrell.
“There is much that needs urgent fixing in our local government structures, and any delay plays into the hands of those who wish the current, and, in many cases, dysfunctional municipalities to remain in place.
“The abundance of evidence of widespread corruption, mismanagement and maladministration simply cannot be ignored any longer and therefore it is vital for the nation that local government elections proceed as scheduled.”
Tyrrell says the country dare not delay the elections even by one day if we are to fix all that is wrong with our municipalities. “Democracy, like justice, deferred, is democracy denied,” he adds.
Delay would give civil society more time to ‘get organised’
Melanie Veness of the Pietermaritzburg Chamber of Business says though the failure of local government is one of the greatest obstacles facing the country, delaying the elections gives civil society more time to get organised by taking advantage of Section 15A of the Electoral Commissions Act 51 of 1996, which basically says that any organisation can register with the IEC to contest local government elections. They needn’t be a political party.
“It’s time for civil society to stand up and be the change that we need at a local level,” she says.
“We have to get our towns and cities back on the right track. In order to do that, we need leadership that is chosen by, and accountable to, the people.
“Failing infrastructure and poor service delivery makes the operating environment extremely difficult for business to navigate. It’s local government’s mandate to create a conducive environment for business to operate in, and in most cases we’re doing completely the opposite.
“Unfortunately, I don’t think having the elections now will bring the change and accountability that is so desperately needed.”
Public weighs in
A public participation campaign by Dear South Africa on the issue of delaying the elections elicited nearly 8 000 responses – 63.3% of them against a postponement. This prompted the group to apply to be admitted as a friend of the court to argue against a postponement.
Campaign director Rob Hutchinson says the IEC (Independent Electoral Commission), by asking for a postponement of the local government elections, is in effect asking the court to suspend democracy. “The IEC is asking the court to sanction a delay in the elections until February 2022 or, in the alternative, to declare any failure to hold elections by October this year as unconstitutional and invalid, but to suspend that ruling until after 28 February 2022.
“The ConCourt is being asked to rule on something which is beyond its powers. It cannot suspend democracy by waiving the Constitution because of a pandemic for any period of time.
“Who’s to say we don’t have another Covid variant in February next year, and we are forced to again delay the elections,” says Hutchinson.
Mandla Mpempe of the Centre for Good Governance and Social Justice says the group is likewise opposed to the postponement of the forthcoming local government elections.
‘This is a manageable situation’
“We all appreciate the impact that the Covid-19 pandemic has on the communities. However, this is a manageable situation,” says Mpempe.
“Putting proper plans and systems in place can mitigate the possible risks. The IEC could amplify its Code of Conduct for the local government elections to insist that Covid-19 protocols be observed in the run-up to, and during, the campaigns and on election day.
“The IEC could also hold the elections over an extended period of say two days.”
Mpempe says many of the current crop of councillors are in any case guilty of human rights abuses in that they failed to provide basic services to communities.
Extending their term beyond October 2021 will be tantamount to further subjecting the communities to squalor and degradation.
Arguments from court applicants
Council for the Advancement of the SA Constitution (Casac) executive secretary Lawson Naidoo says Casac is arguing that the commission essentially seeks an opportunity to conduct non-pandemic elections and that it has not explored what free and fair elections under pandemic circumstances look like.
John Endres, CEO-elect of the Institute of Race Relations, which has applied as a friend of the court, argues for staggered election dates due to the varying peaks and troughs of infection in different provinces. Endres calls on the ConCourt, if it rejects the commission’s case, to dismiss the case and hold the commission accountable to do its job.
AfriForum’s manager of local government affairs, Morne Mostert, argues: “… it is beyond any debate that the extent of poor service delivery by many municipalities across the country and a failure by local government to fulfill its constitutional mandate in many respects, in itself infringes the fundamental rights members of the public on a large scale. This includes the right of dignity and the right to livelihood.” He further argues that the only way to hold delinquent municipalities accountable is to elect new municipal councillors within the time frames allowed by the Constitution.
Johann Kriegler, chair of Freedom Under Law, and a former ConCourt judge, has applied to make submissions as a friend of the court. He says:
“In essence, the Electoral Commission asks the court to grant it a court-sanctioned mandate to infringe the Constitution, in advance of its intended infringement.
“I am advised and submit that it would not only set an incorrect precedent, but a dangerous and far-reaching one, were it to be granted.” The ConCourt is the guardian, not the source of the Constitution, and it cannot grant the relief the commission is requesting. Hundreds of elections have been held around the world during the pandemic, but the commission is asking the ConCourt to make an exception in this instance when it has had more than a year [since the pandemic was declared] to make contingency plans.
The Western Cape MEC for local government has filed notice with the court that it will oppose the commission’s application for a delay.
Yasmin Duarte, deputy secretary-general of the ANC (which has applied to the court as an intervening party), argues that should the ConCourt agree to delay the election, the new election date should be set for no later than April 2022 – not February 28 2022 as the commission has requested. This is based partly on the available scientific data that suggests SA is likely to experience a fourth Covid wave towards the end of 2021.
Philip Machanik, leader of the Makana Independent New Deal (MIND) political party, argues that municipal financial dysfunction is part of a broader picture of failed service delivery and collapsing infrastructure. Alternatives to delaying the election were not fully explored and in the absence of an election, “less regulated” political activity will continue, posing greater risks of spreading the virus.
Werner Horn, the DA’s representative on the National Party Liaison Committee, opposes the postponement of the elections on the grounds that the court lacks to jurisdiction to override the Constitution, and even if it could, this would be permissible where there was no doubt that it was necessary to protect some other central constitutional value. “The commission’s own evidence shows that elections have only caused spikes in infections when they were held when infections were already high, and when large gatherings were permitted. Neither will occur in an October 2021 election.”
African Transformation Movement’s president Vuyolwethu Zungula argues that South Africans are desperate for change, particularly at local government level where corruption is rampant and service delivery is poor. Regular elections are a vehicle for that change. It argues against any delay.
By Ciaran Ryan
This article first appeared on Moneyweb and was republished with permission. Read the original article here.