Former president Jacob Zuma says there is too much secrecy in the South African electoral system and that it is suspicious that after voting, the voter has no idea where their vote goes until the announcement of results.
Sharing insights on the scope and content of the right to free and fair elections could highlight the invaluable role of the checks and balances and arrest misperceptions about willy-nilly changes to the necessary arrangements that have, over the years, secured the integrity and legitimacy of our elections and, ultimately, our democracy.
Insights are essential for guiding the work of election observers and party agents in assisting the Electoral Commission of South Africa in discharging its constitutional mandate to conduct elections and timely declare the election results.
The Constitution guarantees every citizen freedom to make political choices, which includes the right to free, fair and regular elections. It also guarantees every adult citizen the right to vote in elections and to do so in secret. A secret ballot is an essential element of free and fair elections. So is a secure process of enumerating and tallying ballots.
Elections involve interconnected stages and events before, during and after voting day. As such, in most general terms, the “free” aspect of the right requires a political environment free of intimidation in which citizens can engage in electoral activities, such as voting and campaigning, in the absence of coercion and in which there is respect for fundamental freedoms of speech, association and assembly.
The “fair” element of the right requires a level playing field in which all electoral contestants may compete reasonably equally, with equitable access to the media and equal and impartial treatment under the law.
In the Kham case, the Constitutional Court helpfully declared four elements of fundamental importance to the conduct of free and fair elections.
First, if possible, everyone who is entitled to vote should be registered. Second, no one not entitled to vote should be permitted to do so.
Third, insofar as elections have a territorial component, as is the case with municipal elections where candidates are, in the first instance, elected to represent particular wards, the registration of voters must be undertaken in such a way as to ensure that only voters in that specific area (ward) are registered and permitted to vote.
Fourth, the Constitution protects not only the act of voting and the outcome of elections but also the right to participate in elections as a candidate and seek public office.
The Constitutional Court has also stressed in the Mhlophe case that while every adult citizen enjoys the right to vote, the guarantee of free and fair elections is extended to every citizen regardless of age or active participation in voting.
Even disenfranchised citizens and children are entitled to demand that elections be free and fair because, following an election, there must be a government for all and not only those who voted for the ruling party.
In every election, observers and party agents ensure that roleplayers respect, protect and fulfil the rights of voters, candidates and all citizens.
No one should negate the checks and balances that allow for the physical presence of election observers and party agents inside polling stations to oversee every stage of the elections and append signatures on the election results slip of every voting station before transmitting them to a central office, signifying the integrity of the process.
The arrangement has significant implications for each election’s legitimacy. It takes the crucial investment of the Electoral Commission and civil society organisations observing elections, which train and deploy competent people before each election and by-election.
That is also why South Africans, over the years, managed to resolve electoral disputes, deterred electoral fraud and accepted the Electoral Commission’s declaration of election results. South Africans would do well to promote voter and human rights education to safeguard what works and dispel misinformation and ignorance.
Now we see politicians, some of them who have ducked and dived to try to hold off the civil war in their parties, emerge as just another in the line of shameless and reckless power-hungry leaders devoid of any sense of national interest, political honesty or concern for anything beyond their own short-term future.
Instead of emphasising the restoration of some semblance of solidity in electoral politics as their calling card, they are trashing their unique selling point by revealing themselves as callow and opportunistic, willing to say and do whatever pleases at the moment and by casting aspersions on the independence and impartiality of our electoral processes.
“We are going to the elections soon, and there are people who believe the elections will be rigged. Some have information that the counting system will be changed to advantage a particular party. Where is the truth?” said
Zuma in his call for changes in the electoral system and processes.
Change of direction is like a spinning weathervane, but the question is whether he and his strategists have read the weather right – not the burning political climate, of course, but public opinion after several years of improving the system’s efficiency through legislative reform and active participation.
The breathtaking misconceptions of his speech on a secret ballot and the administrative measures in place to ensure the freeness and fairness of elections – virtually every word of it – will be noted by many more voters than it pleases. Most know the seriousness of the message if left unchecked and that the appropriate approach is to emphasise voter awareness and education on human rights relating to elections.
Our democracy will benefit from having genuine leaders committed to improving voter turnout and trust in our elections.
Unfortunately, people often see not genuine leaders but other scoundrels who will do and say anything disreputable, at any cost to democracy, to woo some votes over the short term of the path to the ballot box. It would take a magician to reverse what the country thinks of the integrity of our elections over the past 29 years: that magic is not yet another dose of deception.
Nyembezi is a policy analyst, researcher and human rights activist