Quote of the week

It is necessary that the integrity of the electoral process be maintained. Indeed, the acceptance of the election as being free and fair depends upon that integrity. Elections must not only be free and fair but they must be perceived as being free and fair. Even-handedness in dealing with all political parties and candidates is crucial to that integrity and its perception by voters. The Commission must not be placed in a situation where it has to make ad hoc decisions about political parties and candidates who have not complied with the Act. The requirement that documents must be submitted to the local offices of the Commission does not undermine the right to vote and to stand for election. It simply gives effect to that right and underscores the decentralised and local nature of municipal elections.

Ngcobo CJ
Electoral Commission of the Republic of South Africa v Inkatha Freedom Party
4 September 2021

Why the Constitutional Court ruling on the local government election is bad news for the ANC

On Friday the Constitutional Court dismissed the application of the Electoral Commission (IEC) asking for the postponement of the local government election. Some commentators are interpreting the order as allowing  the IEC to reopen the process for nominating ward candidates and for the submission of party lists, which would open the door for the ANC to fix the mess it has made on this score. Do they have a point, or does the order not really assist the ANC?

As the IEC meets this weekend to decide how to implement the order of the Constitutional Court, it faces a crucial decision on whether the order permits it to reopen the process to nominate ward candidates and to submit party lists. The decision will have a huge impact on the electoral fortunes of the ANC, as well as on the credibility of the IEC. To try and understand what the order requires form the IEC, I explain below what the order says and set out the applicable constitutional principles, before exploring what this may mean for our understanding of the order. This task is made more difficult by the fact that the Constitutional Court has not yet provided reasons for its order (these will follow later).

  1. What the court order said

In order to allow the re-opening of the voters’ roll and perhaps to change the election date from 27 October to no later than 1 November, the Constitutional Court declared that the proclamation of the election date issued by the Minister of Cooperative Governance and Traditional Affairs on 3 August 2021 invalid and unconstitutional. It further ordered the IEC to decide by Monday whether it is practically possible to hold a voter registration weekend, and if it is, to conduct such a voter registration weekend. It also ordered the IEC to reopen voter registration until 10 September to allow eligible voters to register at the relevant municipal office.

The Court ordered the Minister to issue a new proclamation to determine the date for the local government election (which can be held on any day between 27 October and 1 November), either on the day following the voter registration weekend (if one is held) or not earlier than 10 September (if a voter registration weekend is not held).

Crucially, the Constitutional Court further held that the election timetable published by the Commission on 4 August 2021 (which sets an August 23 deadline for the registration of candidates and submission of lists) remains applicable and therefore legally binding. However, the order provides for two possible exceptions to the preservation of the original election timetable. First, if a voter registration weekend is held, the IEC must, in terms of section 11(2) of the Municipal Electoral Act, publish “such amendments to the current timetable as may be reasonably necessary”. Second, if no voter registration weekend is held, the IEC may make amendments to the election timetable, but only those amendments that are “reasonably necessitated” by the re-opening of the voters’ roll until 10 September.

  1. The basic constitutional and other legal principles

The Electoral Commission (IEC) has a constitutional duty to organise a substantially free and fair local government election within the time frames determined by section 159 of the Constitution. Section 11(1) of the Local Government: Municipal Electoral Act of 2000 requires the IEC to compile and publish a timetable for the election, after the election has been called. Section 11(2) allows the IEC to amend the timetable if it considers it necessary for a free and fair election, or if the voting day is postponed.

A full bench of 5 judges of the Electoral Court held in National Freedom Party (NFP) v Electoral Commission and Another (5 July 2016) that the IEC may not use section 11(2) to amend the timetable at the “whim of an individual or party” as the election must be must be “free and fair for all parties and not advance the interests of one party only”. The Court thus dismissed an application from the NFP to direct such an amendment.

The NFP had missed the deadline for paying registration deposits, thus disqualifying them from participating in the 2016 local government election, and had thus asked the court to order an amendment of the election timetable to allow it to participate in the election. The court had no sympathy for the NFP, holding that prospective participants in an election “are required to observe the prescripts” of the timetable, and further stating that:

Individuals or parties who fail to act fairly and correctly may pay the price by exclusion. Those who did act according to the prescripts acted fairly. They are entitled to complain of an unfair election should non-compliant candidates and parties be allowed to join in the process despite their failure to comply with the prescripts. If those who disregarded the prescripts are allowed to join in on the basis contended for by the NFP I am of the view that the inclusion would be unfair vis-à-vis those participants who acted lawfully.

The court thus held that the ad hoc amendment of the election timetable will unfairly prejudice those parties who complied with the imposed deadlines. The power to amend the election timetable, said the court, should only be “exercised in circumstances where it applies to all participants in the election equally otherwise it will open the flood gates for ad hoc extensions of time which way lead to unfairness and is not sanctioned by the legal prescripts”.

Quoting from the Constitutional Court judgment in Electoral Commission v Inkatha Freedom Party, the court also rejected the argument that the election will not be free and fair if a party with substantial support is disqualified from competing in an election. It held that disqualifying candidates or parties from participating for failure to adhere to the rules does not undermined the foundation or values of universal suffrage and multi-party democracy.  “These values,” said the Constitutional Court in Inkatha, “are best advanced through the Commission’s rigorous adherence to the provisions of the Act, read in the light of their legislative purpose. And this is crucial to the integrity of the electoral process.”

From the above, it must be clear that the ANC’s (now withdrawn) application to the Electoral Court last week to reopen the nomination process was doomed to fail (something Helen Zille and Die Burger were obviously unaware of or chose to ignore). The question is whether the Constitutional Court order changes any of this. At first glance it may look like the order changes things.

This glimmer of hope for the ANC is provided by a passage from the NFP v Electoral Commission judgment in which the Electoral Court points out that the “freeness and fairness of elections commence when it is first called. From that date the prospective participants are required to observe the prescripts”. Although the local government election was first called on 3 August, the Constitutional Court declared the proclamation of the election unconstitutional and invalid. Much may therefore turn on whether the Constitutional Court’s invalidation of the 3 August proclamation means the whole election process starts over, or whether the order is merely a technical one and that the starting date of the electoral process remains 3 August.

Worrying for the ANC, the Constitutional Court order makes clear that the election process does not start over – as I explain in more detail below.

  1. What changes to the election timetable are permitted by the order?

The assumption underlying my analysis is that the order does not allow for the election process to start over. This is because the Constitutional Court order specifically states that the election timetable published by the Commission on 4 August 2021 remains applicable, and can only be amended if reasonably necessary. The timetable is subordinate legislation and therefore legally binding and as the timetable remains applicable, everything already done in terms of the timetable (including the nomination of candidates) must also remain valid and binding unless changes are reasonably necessary. This is also the necessary consequence of the fact that the ruling that the timetable remains applicable would be meaningless if the IEC were allowed to start the entire process anew.

(This is crucial. If the invalidation of the election proclamation undoes everything done so far, and if the order that the election time table remains applicable does not mean it remains binding, the analysis might change.)

But that is not the end of the matter as necessary amendments may still be made. The problem for the ANC is that it will be difficult to show that an amendment to the timetable to allow for the reopening of the nomination of candidates is “necessary” to deal with the consequences of reopening the voters’ roll or to ensure free and fair elections. The fact that the Local Government: Municipal Electoral Act does not require the nomination of candidates to occur after the finalisation of the voters’ roll would make this even more difficult to show.

The ANC (or IEC) might argue that such a reopening would apply to all parties and not only to the ANC and that the Electoral Commission v NFP judgment is therefore not directly on point.  At first blush, this looks like a plausible argument, but I am not sure it is a winning one as the IEC may not be able to show that such an amendment is “necessary”. This is, in part, because amendments to the timetable must be made in accordance with section 11(2) of the Act, which only allows amendments if it is necessary for a free and fair election, or if the voting day is postponed, impose a further complication.

As the Electoral Court held in Electoral Commission v NFP that the disqualification of candidates or parties from an election does not affect the freeness and fairness of the election, the reopening does not appear necessary to secure a free and fair election. In fact, the opposite may be true as the Court held in NFP that it would be unfair to parties who complied with the deadlines contained in the election timetable to allow non-compliant candidates and parties to join in the process despite their failure to comply with the prescripts. The fact that the election timetable has not been declared invalid and remains in force, would bolster the perception that complying parties would be treated unfairly if the process is reopened.

But this does not mean that the reopening of the voters’ roll will not require several other changes to the timetable, including changing the dates for the inspection and certification of the voters’ roll, opening and closing dates for casting of special votes, and the date on which the addresses for voting stations open for inspection.

Moreover, it might also require a very limited reopening of the nominations process. This is because section 16(1)(b)(ii) of the Local Government: Municipal Electoral Act states that a person can only validly be nominated as a ward councillor if that person is registered as a voter on that municipality’s segment of the voters’ roll. Where the nomination of candidates were rejected because they did not comply with this requirement, the IEC may arguably have to reconsider their position and allow the nomination of such candidates, if they make use of the reopening of the voters’ roll and change their registration as required.

All this suggests that the order of the Constitutional Court does not allows for the reopening of the nomination process, as the fact that the election timetable remains applicable and thus binding law. In any case, the order definitely does not require the IEC to reopen the process. Hopefully the IEC will keep all this in mind when it decides on the way forward.

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