The Council for the Advancement of the South African Constitution (Casac) says the Electoral Commission of South Africa’s (IEC) decision to appeal the ruling by the Electoral Court on former president Jacob Zuma’s eligibility to contest the elections will help provide clarity on the powers of the electoral body.
Last week, the Electoral Court ordered the IEC to include Zuma’s name on the uMkhonto weSizwe Party’s (MKP) list of candidates for Parliament after the party successfully appealed the commission’s decision to exclude him from the list.
The IEC had upheld an objection from a member of the public to Zuma’s candidacy due to his criminal record for contempt of court, citing section 47 of the Constitution, which disqualifies a party candidate who was sentenced to more than 12 months in prison without the option of a fine from contesting a seat as a member of Parliament.
In 2021, the Constitutional Court sentenced Zuma to 15 months in prison for defying its order to appear before the state capture commission of inquiry.
The IEC has since announced that it is taking the Electoral Court ruling on appeal to the Concourt. The Electoral Court is yet to supply reasons for the ruling.
Casac’s executive secretary, Lawson Naidoo, said they welcomed the IEC’s decision to appeal, saying clarity was needed on its powers.
“We don’t know the basis on which the Electoral Court made their decision but regardless of that, what is being challenged is the order that was made by the Electoral Court.
“We believe that given the arguments that were presented before the Electoral Court, it’s quite clear what the legal issues are and one of the most important issues is around the powers of the IEC and whether they have the responsibility to make a determination of eligibility of candidates. That was one of the issues that was challenged.”
Naidoo said another issue they hope will be addressed by the apex court is the interpretation of the Concourt in the Zuma contempt case.
“From a Casac perspective, our view is that, given that a lot of the argument before the Electoral Court revolved around the issue of interpreting the judgment of the contempt case, we believe it’s appropriate that the Constitutional Court itself provides that interpretation of its own order rather than relying on another court doing so,” Naidoo said.
Terry Tselane, executive chairperson of the Institute of Election Management Services in Africa and a former vice-chairperson of the IEC, last week said the electoral body’s decision to appeal the Electoral Court decision was ill-advised.
“I am really, really surprised the commission has taken this route. For many reasons, I think they are really ill-advised. The Electoral Court indicated that they were going to give them the reasons later on.
“I don’t understand the panic, and I don’t understand why they are approaching the Constitutional Court if the clarity they seek relates to the next elections. The next elections are still very far, and they (IEC) should not be panicking,” Tselane told a national broadcaster.
Tselane said the IEC is not empowered, in terms of section 47 of the Constitution, to administer objections in the manner the Electoral Commission has been pursuing the objection to Zuma’s candidacy.
“I sent them a message and said I think you are making an error here because you are not empowered in terms of the Constitution to do that.
What I am saying now is what I have been saying to them privately, unsolicited,” said Tselane.
However, retired judge and former IEC chairperson Johann Kriegler said the IEC’s insistence on seeking clarity from the Concourt was important as the elections were the most significant political matter for all South Africans.
Kriegler said there was no basis for suspicion of the IEC’s appeal against the Electoral Court’s decision.
“The Constitution creates the Electoral Commission and the Electoral Act gives it certain powers, obligations and responsibilities.
“In general, they have to see that elections are run fairly, freely and orderly in terms of applicable laws and now there’s a dispute over what the law is relating to this particular issue,” Kriegler told a national broadcaster.
The Mercury