The Electoral Commission of South Africa needs to be commended for having initiated a process to review whether the current conditions of the Covid-19 pandemic will be suitable for free and fair elections.
Even more impressive is the fact that they decided to appoint Justice Dikgang Moseneke who is universally admired for his independence, integrity, and knowledge of legal process, to lead this process. Many of us have appeared before Justice Moseneke to either motivate for the postponement of the 2021 Local Government Elections or to proceed under the current circumstances. Those who have argued for the retention of 27 October 2021 as the election date have basically centred their argument on two points.
Firstly, they have argued that this would be unconstitutional because such a move would offend section 159 (1) of the Constitution of South Africa which states that the term of office of a Municipal Council is a period of five years. According to them postponing the elections beyond a constitutionally stipulated period of 90 days after the date of the last elections would therefore be unconstitutional. Section 159 (3) of the same Constitution however says that a Municipal Council is competent until a new Council is elected. So, the expiry of the term of office does not render a Municipal Council incompetent.
Secondly, they have argued that postponing the elections would set a very bad precedent of changing election dates willy-nilly. Perhaps even more perplexing is the fact that they have further argued that postponement would give “illegitimate” Councillors time to continue in their current roles. Even though I have previously argued that democracy is far too important to be postponed, this can’t be a dogmatic position.
The essence of my argument was that the elections should not be postponed willy-nilly. And I still stand by this position. The current circumstances of the Covid-19 pandemic are however different and force us to reflect deeply on this issue.
Section 190 (1) implores the Electoral Commission to “Ensure that the elections are free and fair”. The current circumstances of the pandemic in terms of which the daily infections rate is around 20 000 and daily death rate is hovering around late 400 is of great concern. As a result of this, President Ramaphosa has been forced to put the country under tighter restrictions. All gatherings have been banned and citizens have been confined to their homes. The essence of this is that citizens’ rights as contained in Section 19 of the Constitution have been curtailed and political parties are prohibited from meaningful interaction with their constituencies. This has a bearing on freeness and fairness of the elections.
The issue of service delivery is a serious one and affects almost all municipalities and various government departments. But all current councillors were legitimately elected in a free and fair elections. So, our frustration with service delivery does not render elected public representatives illegitimate. Whereas elections provide citizens a platform to elect their public representatives, it does not necessarily mean that this process will automatically remove current incumbents. I however agree that citizens should not be denied this right unduly.
The IEC has previously postponed the by-elections beyond a constitutionally stipulated period of 90 days, and this did not harm the state of our democracy. So, this can be done again in the interest of free and fair elections. The electoral legislation furthermore anticipates moments in history when postponement of elections is inevitable. Both the Electoral Act and the Municipal Electoral Act empower the Commission to approach the person who has set the date of an election to postpone such an election if conditions for free and fair elections do not exist.
Postponing the elections to May 2022 will enable health authorities to vaccinate permanent IEC staff as well as more than 220 000 temporary staff that the IEC will need in order to deliver the elections. This period will also give the health authorities sufficient time to vaccinate a sizeable population group as well as political party agents who will be stationed at voting stations.
Currently, vaccination is the only thing that will give citizens a sense of security to participate in electoral processes. Europe and the US have led the way and their citizens are now filling the stadia again. The May date is furthermore not arbitrarily chosen, however, it has taken into consideration the fact that health authorities would need sufficient time to vaccinate the identified categories, the year end examinations and vacation period, religious and public holidays as well as long weekends. These are factors that are important in determination of an election date.
Postponing the election due to the fact that the current conditions do not allow for free and fair elections would be good for our democracy. It will furthermore enable the IEC to meet its constitutional obligations of ensuring free and fair elections.
* Terry Tselane is Executive Chairperson of the Institute of Election Management Services in Africa (IEMSA) and former Commissioner and Vice Chairperson of the IEC.
** The views expressed here are not necessarily those of IOL and Independent Media.
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