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.
Although the election campaign was perhaps not as free and fair as it could have been (the ‘public’ broadcaster, for one, was obviously biased in favour of the governing party), those of us who will head to the polls next Wednesday can do so confident that the casting and counting of ballots will be as free and fair as our vote deserves. As we do so, there are a few important things to remember about the voting process.
On Friday the Electoral Court will conduct a full inquiry into the request by several smaller parties for the Independent Electoral Commission (IEC) Chairperson, Pansy Tlakula, to resign.
In terms of section 7(3) of the Electoral Commission Act, a commissioner of the IEC can only be removed from office by the President on the grounds of misconduct, incapacity or incompetence.
But this can only be done after the Electoral Court has recommended removal, a committee of the National Assembly had endorsed the Electoral Court recommendation and a majority of the members of the Assembly had adopted a resolution calling for that commissioner’s removal from office.
The President can only suspend a Commissioner from office once the National Assembly Committee has started its deliberations. The President would therefore not be able to suspend any Commissioner immediately after the Electoral Court had recommended the removal from office of that Commissioner and will have to wait until the National Assembly begins to consider the matter.
This means that even if the Electoral Court finds that Tlakula was indeed guilty of misconduct, incapacity or incompetence (and it is impossible to say before the hearing on Friday whether this will be done or not), there is no chance that Tlakula will be removed from office before the election on Wednesday.
In the event (not at all a forgone conclusion) that the Electoral Court recommends Tlakula’s removal, it would of course be in the interest of the legitimacy of the election for her to step aside voluntarily.
But no matter what happens on Friday, it would be extremely surprising – given the excellent legal framework established for the conduct of the voting and the counting of ballots – if any real problems arise with the casting and counting of ballots.
The Electoral Act stipulates in great detail how ballots must be cast and counted and prohibit several activities, all of it aimed at guaranteeing the freeness of the vote.
Voters can only vote (between 7 am and 9 pm) at the voting stations where they are registered to vote (unless they complete a sworn statement, in which case they can vote at a different voting station) and then only if they produce a bar-coded ID book. It is important to check that IEC officials mark the thumb of all voters and also that they record that those voters who are given a ballot paper have actually now voted. If IEC officials fail to do so at your voting station, this may mean some voters will be allowed to vote more than once.
If you make a mistake on your ballot paper you have a right to request a new ballot paper from IEC officials. The wrongly marked ballot must be marked “cancelled” in front of your eyes when this happens.
The Electoral Act also contains detailed provisions to deal with the counting of votes. The most important safeguard against fraud in the counting of ballots is that agents of political parties are allowed to be present at the counting and may also object to any alleged miscounting or over-counting of votes.
Section 87 of the Electoral Act prohibits any person from compelling or unlawfully persuading anyone from voting or not voting and from voting or not voting for a specific party. A person who contravenes this section is guilty of a crime and can be sentenced to a term of imprisonment of up to five years.
In terms of section 90 it is also a criminal offense to interfere with a voter’s right to secrecy while the voter is casting a ballot. A person who breaches this section can be sentenced to a term of imprisonment of up to ten years.
One way of forcing voters to vote for a specific party is for a person to harm or kill a voter who fails to show a photograph of their ballot indicating that they had voted for the party of the intimidator. That is why Item 38(1)(A) of the Regulations promulgated in terms of the Electoral Act prohibits anyone from taking a photograph or make any other image of a ballot paper after the ballot has been marked. This section was inserted in 2013 and the 7 May election will be the first election where it will apply.
Section 108 of the Electoral Act also prohibits any person from holding or taking part in any political meeting, march, demonstration or any other political event on election day. People are also prohibited from conducting any political activity (including last minute campaigning) within the designated boundaries of a voting station. Once again a maximum sentence of five years can be imposed for breaching these provisions.
Party agents are also prohibited from displaying or distributing party posters, pamphlets or placards within the boundaries of the voting station. Party agents may also not wear T-shirts or other paraphernalia that identifies them as belonging to a specific political party while they are within the boundaries of the voting station.
Interestingly, section 109 prohibits anyone from printing, publishing or distributing the results of an exit poll during the hours of voting. But it does not prohibit the taking of exit polls and if media houses were to club together to pay for exit polls this could become a standard part of post election proceedings in South Africa.
The IEC has thus far always acted in a manner that instilled confidence in the voting and counting process and there is no evidence to suggest that this will not be the case in the upcoming election. But if any wayward IEC official fails to comply with the law, it will be ordinary voters who will have an important role to play to alert the IEC of wrongdoing.
I hope this article will assist to empowering voters in acting as the eyes and ears of the IEC to ensure that the casting and counting of ballots remain as free and fair as it has been in the previous elections.
PS: This article has been amended to correct a misstatement regarding whether you would be allowed to vote at a different voting station from the one where you are registered.