Durban — The Electoral Commission of South Africa (IEC) may have shot itself in the foot by pronouncing on the eligibility of former president Jacob Zuma as a parliamentary candidate before he was nominated and objections were raised.
This was the legal view of Black Lawyers Association coastal chairperson Advocate Mpumelelo Zikalala, who weighed in on the matter following the Constitutional Court’s (Concourt) directive to the IEC and the uMkhonto weSizwe Party to respond on whether Commissioner Janet Love's participation in the process which led to the decision that Zuma was ineligible as determined by the Commission.
The Concourt also wanted to know whether it was open to the court to substitute the determination by the Commission.
The Concourt was referring to the article published by the Daily News in January when the publication asked the IEC whether Zuma was eligible for a parliamentary seat, given that he was sentenced for more than 12 months without the option of a fine.
In its official response, and citing Section 47 of the Constitution, the Commission said Zuma was disqualified from being on the list of any party contesting elections.
The IEC's response read: “Section 47 (1) states every citizen who is qualified to vote for the National Assembly is eligible to be a member of the Assembly, except (e) anyone who, after this section took effect, is convicted of an offence and sentenced to more than 12 months imprisonment without the option of a fine, either in the Republic, or outside if the conduct constituting the offence would have been an offence in the Republic, but no one may be regarded as having been sentenced until an appeal against the conviction or sentence has been determined, or until the time for an appeal has expired. A disqualification under this paragraph ends five years after the sentence has been completed.
“Therefore this provision renders former President JG Zuma disqualified from being on the list of any party contesting an election or to contest as an independent in the upcoming 2024 National and Provincial Elections.”
Zikalala said it was this comment that drastically weakened the Commission’s case since it meant that Love went to a meeting with a pre-determined view that Zuma was ineligible.
He said the Commission might lose the case based on procedural grounds because it should not have commented on the publication’s story before there was an objection.
Zikalala further stated that after the objection, the Commission should have reached out to Zuma and offered him an opportunity to make representations on the objections.
Another Commission blunder, according to the legal expert, was allowing Commissioner Love to participate in a decision to disqualify Zuma having publicly made her or the commission’s position known prior to the objection.
“The Commission may have shot itself in the foot. In law following a procedure is very important. The judges might have an issue with the IEC’s apparent failure to follow the procedure as well as allowing Love’s participation in reaching a decision to disqualify Zuma after having her views publicly known on his eligibility. The lawfulness, correct procedure and rationality are the most important matters in the justice system,” said Zikalala.
The Court directed that the parties file by 5pm on Tuesday. Here are some of the questions the Court wanted the parties to respond to:
- (a) If the question was specifically about Mr Zuma's eligibility for membership of the National Assembly, was the expression of the legal position not also about that eligibility and to the effect that the expressed legal position disqualified Mr Zuma?
- (b) Ought Commissioner Love not reasonably to have realised that the legal position might be contested by uMkhonto weSizwe Political Party and Mr Zuma?
- (c) In the event that she would reasonably have realised what is referred to in paragraph (b), ought she not reasonably to have realised that the Electoral Commission might have to pronounce on Mr Zuma's eligibility for membership of the National Assembly?
- (d) In the event that she would reasonably have realised that the Electoral Commission might have to pronounce on Mr Zuma's eligibility for membership of the National Assembly, ought she not to have refrained from expressing a view about the eligibility?
- (e) Having not refrained from expressing a view about Mr Zuma's eligibility, ought she to have recused herself from participating in the Electoral Commission’s determination of the eligibility?
- (f) If she ought to have recused herself, what is the effect of her participation in the determination by the Electoral Commission of Mr Zuma’s eligibility?
MKP spokesperson Nhlamulo Ndhlela confirmed receiving directives from the Concourt.
The IEC’s spokesperson Kate Bapela had said the Commission would deal with the matter during a media briefing.
The IEC had appealed the Electoral Court’s decision which ruled that Zuma was eligible. The Concourt heard the matter on Friday last week and reserved judgment.
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