Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
27 May 2024

The IEC is not perfect, but beware of bad faith attacks aimed at discrediting the election

While the IEC deserves to be scrutinised and held to account for any stuff ups, it is important to keep a sense of perspective about any IEC administrative cock-ups, and not to overreact to small problems that the IEC is working in good faith to fix

It will be a relief when the national election campaign finally comes to an end next Tuesday, not least because electioneering seems to bring out the worst in many South Africans. The national mood normally changes significantly on election day when a strange calm descends on many parts of the country, and it almost becomes possible for some of us to ignore our tattered dreams about the achievement of dignity and equality and “a better life for all”, and dare to hope that things might get better.

So, it is with a hint of optimism, and a dollop of sentimentality, that I will walk down to my voting station at the Sea Fisheries garage in Sea Point on Wednesday to cast my vote. And in the same spirit I will fondly recall the words of justice Albie Sachs in his judgment in August v Electoral Commission that “[t]he vote of each and every citizen is a badge of dignity and of personhood. Quite literally, it says that everybody counts”.

This election will, of course, be different from previous ones. It is the first time since 1994 that the ANC is not assured of winning an absolute majority of seats in the National Assembly, with much depending on what disaffected ANC voters will do: stay at home, grudgingly vote for the ANC, or vote for one of the new kids on the block. It is also the first time that there are valid concerns that the leaders and/or supporters of emerging populist political parties may not accept the validity of the results.

Because the Electoral Act allows political parties to challenge all significant aspects of the voting, the counting, and the tabulation of results, and requires a degree of transparency that makes large-scaling electoral fraud unlikely, larger political parties have previously always accepted the final results of an election, after it had questioned the impartiality of the Electoral Commission (IEC) or the veracity of some of the results.

To be clear, while the Electoral Act contains well-designed and effective mechanisms to ensure the fairness of the process, this does not and cannot deliver a faultless election. To ensure that everything runs smoothly on election day is an enormously complex task, made more difficult by the fact that the IEC has to rely on thousands of temporary staff to run voting stations and to do other important tasks. In addition, the IEC is currently underfunded, and there are signs that it is not administratively as efficient as it once was. It would therefore not be surprising if – as in past elections – some stuff-ups occur on election day.

So, I would not be surprised if some voting stations open late, or if others run out of ballot papers or ink during the day. Some presiding officers might misunderstand or misapply the rules, while some individuals tasked with the counting of votes may make mistakes that might add a few votes to the tally of this or that party. Minor mistakes with the tabulation of results sent to the IEC results centre are also inevitable. But as I explain below, as long as party agents remain alert and do their job diligently, almost all these mistakes will be picked up and corrected (or exposed with a view to a later constitutional challenge).

Apart from potential infrastructural problems that might make it more difficult for some citizens to vote or might delay voting – no water or electricity at a polling station, for example – there is, of course, also always a risk of voter intimidation and violence on election day. There is also a risk that disgruntled voters might force the closure of a voting station or might try to steal or destroy stuffed ballot boxes. If the latter happens, it would be imperative for the police to act decisively and that the perpetrators are caught and prosecuted. But it is important to understand that isolated incidents of this kind will not affect the overall freeness and fairness of the election or the validity of the results.

My biggest concern about the management of the election is that changes to the electoral system which now requires voters to vote only at the voting station in the voting district for which that voter is registered, and introduces two ballot papers for the National Assembly election, may cause voter confusion and may lead to long voting delays on election day. The extra ballot may also lead to delays in the finalisation of the counting of votes.

It is inevitable that reports of administrative glitches or other stuff-ups will spread like wildfire on social media, and that it will then be blown up out of all proportion to the extent of the actual problem (in the usual social media way), before fading away after a few hours when it becomes clear that almost all people who were determined to vote actually got a chance to do so. What worries me is the possibility that bad faith actors will exploit these problems in an attempt to discredit the entire election – especially if they sense that their preferred party did not do as well as they had hoped.

While the IEC deserves to be scrutinised and held to account for any stuff ups, I want to appeal here to the hot-headed and over-excitable politicians and supporters of political parties as well as to all journalists in search of a breaking news story to keep a sense of perspective about any IEC administrative cock-ups, and not to overreact to small problems that the IEC is working in good faith to fix, or that will have no impact on the final results of the election, and to reserve their outrage for only the most serious problems that might threaten the overall freeness and fairness of the election.

That said, let me explain why I am confident that there are sufficient safeguards built in to the system to prevent the kind of large scale cheating that would skew the final results. Pivotal here is the central role given to political party agents and the agents of independent candidates to ensure the overall fairness of the process. The Electoral Act allows each political party and each independent candidate contesting the election to appoint two party agents to observe the voting and the counting of votes at each voting station, as well as the appointment of four agents to observe the counting of votes at vote counting centres and to observe the final tabulation of results at the IEC results centre.

Agents have a right to observe the entire process and to challenge any aspect of the process they find troubling. Agents may, for example, challenge a decision by the presiding officer that a voter is or is not entitled to vote, or to cast their ballot at a particular voting station.

Agents also have an important role to play to ensure that full ballot boxes are not tampered with, as a presiding officer is required to seal such ballot box in the presence of agents  present in the voting station. After a polling station has closed, the presiding officer must – in the presence of agents – record the number of used and unused ballot boxes and other election materials at the station. If the validity of the results at that polling station is later challenged on the ground that ballot boxes were tampered with or removed, or that stuffed ballot boxes were sneaked in, this record would help to resolve the challenge.

Agents also have a right to observe the sorting and the counting of ballot papers and to object to any alleged inaccuracy in the process. Once the votes have been counted, the presiding officer has to announce the results of the count at the voting station to members of the public and agents present at the voting station. This is important as it allows political parties and members of the public to compare the results announced at the polling station to the results that will later be published on the IEC website. (The IEC publish the results from every polling station separately.) Discrepancies can thus easily be identified and corrected.

If any objection by an agent is rejected by the presiding officer, an appeal can be lodged with the IEC, who is required to resolve the appeal before the final results is announced. But the Electoral Act also allows any other interested party to lodge an objection with the IEC about any alleged voting and counting irregularities that are material to the determination of the final result of the election. An objector or other party involved in the objection who feels aggrieved by the decision of the IEC may lodge a further appeal with the Electoral Court.

As a last resort, a political party or other interested group who believes that material irregularities had occurred during the voting, counting, or verification process may approach the Constitutional Court to challenge the freeness and fairness of the election. As every step of the process is formally recorded in the presence of the agents of political parties and independent candidates, material irregularities would be difficult if not impossible to hide from the Court. In the unlikely event that the Court finds that the election was not free and fair, it will have to invalidate the election, which may require a new election to be held within 90 days.

Whatever happens in the coming days and weeks, I for one look forward to casting my vote on 29 May for the independent candidate and political party of my choice.

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