As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
“If voting changed anything,” remarked the anarchist Emma Goldman, “they’d make it illegal.” But you do not have to be an anarchist or believe that voting can never change anything to ask critical questions about the factors that may make it difficult for every single voter to decide freely (and in an informed manner) which political party he or she should vote for.
Asking such questions is not to deny the importance of elections for all of us who live in our South African democracy. In a country like South Africa where the vast majority of citizens had been denied any say in the governing of the country for over 300 years, the act of voting carries a profound symbolic significance. As the Constitutional Court remarked in August v Electoral Commission:
The vote of each and every citizen is a badge of dignity and of personhood. Quite literally, it says that everybody counts. In a country of great disparities of wealth and power it declares that whoever we are, whether rich or poor, exalted or disgraced, we all belong to the same democratic South African nation; that our destinies are intertwined in a single interactive polity.
It is exactly because voting in a national election is a “badge of dignity and personhood” for those who take part in it, that it is important that we do everything we can to make the process as free and fair as is humanly possible. This requires us to identify the barriers which limit free political activity and thought, and to devise ways of dismantling such barriers.
Free and fair elections are a matter of degree: working towards a more free and fair system is therefore a process, not an event.
Even when voters are free to cast their ballots in secret and where these ballots are all counted accurately (as has arguably been the case in South Africa since the dawn of democracy in 1994), many factors limit the ability of voters to make informed choices about whom to vote for.
It is therefore impossibly optimistic to talk of a truly free and fair election campaign. Election campaigns can be more or less free, but the radical freedom that would allow each voter to make a truly informed choice at the end of an election campaign remains a far-off dream.
At the heart of the problem is the corrosive influence of money and power – also the money and power wielded by private business.
Money skews the electoral process. Political parties with access to money can run far more effective election campaigns than parties without the necessary resources. It is for this reason that the interests of those who can donate large sums of money often play a disproportionate role in the calculations of any political party who aspires to govern the country.
If you have pots of money you can bus supporters to rallies, can dish out T-shirts and food parcels, can pay popular artists to perform at the rallies and can fly your leaders with a private jet from one rally to the next.
You can also organise thousands of “volunteers” to phone or personally visit potential voters in their homes to sell your party, its leaders and its message.
You can produce and flight radio and television adverts to sell your party to voters and can print millions of posters and flyers to create the impression that your party is a serious entity with real electoral support.
You can pay media consultants to ensure your party’s presence on social media and to advise you on which messages will resonate with potential voters and which will not.
You can also conduct tracking polls to find out whether your campaign is effective or not and can adjust the campaign accordingly, shifting resources from areas where you are not gaining traction to other areas where you seem to be gaining support.
A party without the vast sums of money available to the ANC and (to a lesser extent the DA) can do few, if any of these things and are therefore at a distinct disadvantage in communicating their message to voters. They have to depend on the media to spread their message.
But under normal circumstances the media do not and cannot treat all political parties equally and fairly. The larger parties are given more attention than smaller parties, thus reinforcing the dominance of the larger parties vis-à-vis smaller parties.
Moreover, some media outlets are more sympathetic to some parties than to other parties.
The SABC, whom the vast majority of voters depend on for their information about the election, supports the ANC and relentlessly promotes its message and its leaders while either ignoring or minimising the messages of other political parties.
Some of the mainstream “serious” printed media (serving a relatively small economic elite) is more sympathetic towards the DA. As far as I am aware no media outlet pushes the agenda of the Economic Freedom Fighters (EFF), perhaps because its economic and political programme threatens the financial interests of the media companies who must report on the EFF’s activities.
A political party who is in government also enjoys the benefits of incumbency. It is a known quantity and in the eyes of many voters appears to be the vehicle through which the state benefits are provided to citizens. Incumbent parties often use (or abuse) state resources and their control of government machinery to reinforce the electoral messages the party wishes to communicate.
Smaller parties or new parties are at a particular disadvantage in this regard as it has neither the resources nor the power to convince voters that it would be able to do a better job than the lot who has been governing over the previous five years.
One of the most effective ways of levelling the playing field is to provide all political parties who has at least some demonstrable electoral support with substantial free access to all radio and television stations to sell itself to the electorate.
This can be done by providing a nightly platform of 30 minutes across all radio and television stations in the country, where each party is given free reign to sell itself to voters. If this window is provided on all television and radio stations at the same time, it will be impossible for most potential voters to ignore.
The major political parties (perhaps the 10 parties who had registered the most support in an independent survey at the start of the campaign) could be given turns each night (say, for 15 minutes each) to sell itself to the electorate in any way it wished.
The Chilean movie, No, starring Mexican actor Gael Garcia Bernal (and worth seeing for that reason alone) is instructive in this regard.
It tells the story of how, after fifteen years of military dictatorship, the public of Chile is asked by the government to vote in the national referendum of 1988 on whether the dictator General Augusto Pinochet should stay in power for another eight years or whether there should be an open democratic presidential election the next year.
The movie depicts this campaign, which took place over 27 nights of television advertisements, in which each side had 15 minutes per night to present its point of view. At the start of the campaign it was widely accepted that General Pinochet would easily win the referendum as he had all the advantages of an incumbent dictator.
However, over that month, the No campaign, created by the majority of Chile’s artistic community, proved effective with a series of entertaining and insightful presentations that had an irresistible cross-demographic appeal.
By contrast, the “Yes” campaign’s advertising, having only dry positive economic data in its favor, was too stodgy, crass and heavy-handed, which led to a defeat for General Pinochet and an effective end to the right wing dictatorship.
Such free access for all political parties to radio and television will not deal with all the factors that limit the freeness and fairness of elections. But it will represent a major step in democratising the electoral process and levelling the playing field – especially for smaller political parties whose message is unpopular with the economic and political elite who usually control so many of the resources in a capitalist society.