Justice Dikgang Moseneke
Justice Dikgang Moseneke

Tricky to put polls on ice while chaos reigns in municipalities

By Opinion Time of article published Aug 11, 2021

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Nkosikhulule Nyembezi

Cape Town - A mere 12 weeks before the local government elections, the clouds have darkened like a gathering storm over the Electoral Commission’s strategy to seek a postponement at all costs.

It’s apparently a sure touch in steering the country through another democratic and peaceful transfer of power at municipal government level – and reaping enormous credit for the success of the electoral processes – has begun to look more conditional.

The commission’s political vulnerability, in the eyes of election candidates, in the legislative bodies and with the public, is more apparent now than at any time since its inception.

This comes after it filed, after a long hesitation, an application with the Constitutional Court to postpone the elections to February; prompted by the findings of an inquiry by retired Deputy Chief Justice Dikgang Moseneke, who recommended the elections be deferred due to the health risks posed by the Covid-19 pandemic.

Indications suggest that the application will face strong opposition from a wide spectrum of stakeholders.

The term for the 278 municipal councils elected in 2016 across the country ended on August 3, the same day that Co-operative Governance and Traditional Affairs Minister Nkosazana Dlamini Zuma proclaimed October 27 as the date for the municipal polls.

The immediate implication of the proclamation by the minister was the closing of the voters roll by midnight on August 3, meaning no new eligible voters may register until the court gives approval for the postponement of the elections.

Another worrying side is that, if the elections go ahead in October, many unregistered voters could be excluded.

Several things have converged to mean that the important, if not yet decisive, court application should be carefully noted. The warning signs range from the embarrassing lack of aggressive encouragement of eligible voters to register on time in order to improve voter turnout and ensure the integrity of these elections.

If you doubt the weight of this consideration, ask whether eligible voters like former president Jacob Zuma have been afforded an opportunity to register in prison and how much the unavailability of such an opportunity is likely to impact negatively on the overall success of the elections.

Mixed messaging from the commission on the voter registration deadline as well as other important deadlines on the current election timetable have added to the stew.

However, the most potent reason for the commission’s vulnerability due to the court application is the threat posed by the chaos across the country because of the high number of dysfunctional municipalities.

That is especially important if there are going to be further delays in the implementation of the urgent recommendations in the latest report of the auditor-general to curb corruption and misappropriation of state resources in municipalities. Not to mention inevitable future misappropriations due to an extended transition period that must involve the induction of the newly elected councillors.

This threat is itself hydra-headed in its subversive potential to stir up a constitutional crisis and deepen legitimacy-deficiencies in our democracy.

Shifting the election date and thereby increasing uncertainty on how the struggling municipalities will function in the coming months make this chaos a fearsome widespread possibility, despite the argument that the delay, as a result of a postponement, will be only a few months.

Politically, this matters because it has the potential to expose the incompetence of the ANC government.

Take, for example, the recent media statement by the National Assembly’s co-operative governance and traditional affairs committee drawing attention to an apparently long-promised, yet-to-be-tabled Intergovernmental Monitoring, Support and Intervention Bill of 2013.

The bill was drafted with the intention of, among other things, providing for uniform standards in the application of section 139 of the Constitution.

Section 139 empowers a provincial government to intervene in the affairs of a municipality struggling to deliver basic services, the development of policy and initiation of by-laws, or the implementation and administration of legislation related to local government.

So serious is the situation that the Cabinet recently decided to intervene in 64 dysfunctional municipalities and, in some cases, it triggered the process of dissolving some municipalities under circumstances where it is constitutionally impossible to hold by-elections to fill vacancies.

Imagine if the law were passed and implemented a long time ago. Perhaps we would have more tools in the toolbox to mitigate the damage.

The commission’s strategy matters politically, because it has the potential to force President Cyril Ramaphosa to do the one iconic thing he has been determined all year not to do – appear to impose an election campaign lockdown as vaccination rates rise.

After the delays and confusion that characterised his handling of the coronavirus last year, Ramaphosa acted decisively for caution and consistency at the start of this year. Adjusted lockdown regulations and vaccines were the twin pillars of an approach that transformed his standing with the public and silenced his critics, as long as it seemed to be working in flattening the pandemic curve.

The tests of the constitutionally mandated five-year term of office and the policy to contain the pandemic were always going to come when they were loosened, not while they were fully in force.

But any move to delay the elections and thereby allow the chaos in dysfunctional municipalities to continue shows how fragile the commission’s strategy remains.

These were foreseeable moments of crisis inherent in the failure by all those concerned to stick to the election timetable. As long as an appetite for a postponement continued, they could be suppressed, but they were always dormant.

Many independent candidates and civil society organisations have zipped their lips since January but they have not changed their minds.

If there is a choice to be made between going ahead with elections this year and a postponement to next year, they will always choose the former, using the language of the Constitution to assert their rights and interests, and their hostility to the commission’s abdication of its core responsibilities.

Now, as we wait for the court decision, all that looks much more uncertain.

Nyembezi is a policy analyst and a human rights activist

Cape Times

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