It is unlikely that the Constitutional Court will rule in the IEC’s favour regarding the reopening of the candidate list. And if it doesn’t the IEC’s reputation will take another knock, writes Mcebisi Ndletyana.
Whoever thought an election timetable would be the subject of a Constitutional Court challenge?
Possibly very few people ever thought so. However, a timetable has been central to a court dispute, which lasted for approximately three years, and involved both the Constitutional Court and the Electoral Court.
The dispute stemmed from a by-election held at Tlokwe in 2013. The final ruling, issued by the Constitutional Court on 30 November 2015, underlined that a timetable is critical to determining the free and fairness of an election. It not only sets dates for the various electoral activities, but also specifies how long each activity should take to ensure that none of the participants is disadvantaged.
The integrity of the electoral outcome, which determines whether or not it’s challenged, rests on both the soundness and compliance with the timetable.
Central to the current legal dispute is whether the Constitutional Court order permitting the Independent Electoral Commission (IEC) to have a voters’ registration necessarily allows for a re-opening of the submission of lists of candidates.
Court silent but IEC still acted
The Court order was silent on re-opening of candidates lists. Despite this silence, however, the IEC has interpreted the allowance for voter registration to mean that political parties and independents can too be given another opportunity to re-submit their candidates’ list. The Commission’s reasons are that registration enables whoever wants to stand for election to do so. Not re-opening the registration of candidates will deny registered voters their right to stand for office. Candidate registration, the Commission insists, goes hand-in-hand with voter registration.
A lot has already been said on the IEC interpretation.
Besides the silence on re-opening registration of candidates, Terry Tselane, former vice-chairperson of the IEC, wrote in the Business Day highlighting that the Constitutional Court order was emphatic that what had already happened based on the old timetable should remain unchanged.
READ | Q&A: Reopening candidate registration a misinterpretation of court ruling – Terry Tselane
The only new activity that should be inserted is voter registration, which has now been scheduled for this weekend. Equally noteworthy is the wording of the ruling even in relation to voters’ registration. It did not prescribe to the IEC that it must have voter registration but merely recommended on condition that doing so was “practicable”.
The use of the word “practicable” was deliberate.
The Court was doubtful over whether the IEC should even have a round of voter registration. This doubt is informed by concerns over the integrity of the electoral outcome. Pre-poll activities are as just as important as voting on the day and counting when it comes to determining the credibility of the outcome.
The Constitutional Court decision that annulled the outcome of by-election at Tlokwe in 2013, turned on, among others, the delay in issuing the voters roll. It was issued on 4 December 2013, instead of 26 November 2013. This meant that parties did not have sufficient time to study the roll, verify its authenticity and seek corrections from the IEC.
The Court was particularly ardent on compliance with the date for the sake of Independent candidates.
Unlike parties, Independents don’t have adequate resources or machinery for such onerous tasks as verifying a voters roll. They require all the time they can get. That Independents at Tlokwe were not able to so, the Constitutional Court ruled. This meant they were disadvantaged. They could not ascertain that their supporters were registered nor identify more registered voters to canvass their votes.
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If we accept that the Justices made the recommendation for voter registration reluctantly, and only on condition that it was practicable, why then would the IEC interpret the order to mean they could insert yet another activity.
The only reason that one can think of is that the Commission was determined to grant parties that failed to register their candidates a second chance to do so. This has, in turn, placed the integrity of the electoral process at risk.
The IEC is now under even more pressure to deliver a credible election. Preparations for elections are a demanding exercise under normal conditions. Mistakes always happen. Unlike before, the IEC has now had to compress its table-table. Pre-poll activities will each be accorded less time. These include verification of voters roll, registration of candidates and authentication of their eligibility. One is not even sure how ideal the recruitment and training of staff was for this election.
One, of course, accepts that the pandemic presented unusual circumstances. It was unlikely to be business as usual. But, the Commission seemed strangely unsure about what to do.
Appointing Justice Dikgang Moseneke to probe whether it was possible to hold elections was understandable but not necessary. The Commission could have made that determination all on its own. Rather than make the determination and suffer any backlash that would have arisen, the Commission went to Justice Moseneke to make the decision for them. This meant they could not be blamed for anything but would simply say they were following Moseneke’s recommendation.
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Even when presented with recommendations, the Commission opted for the wrong one. Instead of going to Parliament to ask for an amendment, they approached the Constitutional Court to issue an order allowing for the election to be held beyond the prescribed period. When asked why they didn’t go to Parliament to ask for a legislative amendment, the Commission then gave an extraordinary response, saying it can’t initiate laws. But, this is part of the IEC functions and has been doing all the years.
It came as no surprise that the Constitutional Court turned down the application to postpone the date of the election. The IEC should have known that. They have been dealing with the apex Court for years now. It is religious about following legal prescriptions and frowns on getting involved in politics. For the Court to issue a decree would have been akin to usurping powers of Parliament. There is no law upon which the Court would have based that decision. It’s for Parliament to issue that law, then the Court would have ensured its enforcement, if necessary. No doubt the Court’s full judgment will be quite strident in its rebuke of the IEC for getting it so wrong and, in the process, making it look like it is impeding proper administration of elections.
I’d be highly surprised if the Court decides in favour of the IEC re-opening registration of candidates. The Court is just too concerned about the integrity of electoral outcomes to make that decision. And, if the IEC loses, its reputation will take a further knock. That doesn’t’ augur well, especially now that mistakes are likelier than before. A good reputation buys goodwill. Parties overlook mistakes only when they have no reason to suspect malice. That’s not the case now. The IEC has a lot to do in order to restore its reputation.
– Mcebisi Ndletyana is associate professor of politics at the University of Johannesburg and author of the book, ‘Institutionalising Democracy: The Story of the Electoral Commission of South Africa, 1993-2014 (HSRC Press, 2015)’.
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