Potential fallout from Zuma’s victory over IEC in electoral court

The electoral court’s ruling overturning the decision by the Electoral Commission of South Africa (IEC) to uphold an objection against former president Jacob Zuma standing for Parliament came as a surprise to most people who had been following the case.

This was primarily because, as has been pointed out, the Constitution is very clear on this matter: persons who have been sentenced to a term of more than 12 months in prison in the past five years cannot represent a political party in Parliament.

As Zuma was sentenced to 15 months in prison three years ago, it seemed obvious he would not be eligible to stand.

Before the electoral court decision, experts including constitutional law professor Pierre de Vos said he was ineligible.

So clear is the constitutional language that IEC commissioner Janet Love said in January that Zuma’s candidacy would be “impeded” by his sentence.

It is one of the strange nuances of this situation that, though the umkhonto Wesizwe (MK) party has used Love’s comment to claim that the IEC was biased against Zuma, it was Zuma who appointed Love as an IEC commissioner.

The matter has been complicated by the fact that the electoral court has not yet released its full judgment.

This is not the fault of the judges (in this case, the electoral court was made up of three judges and two professors), but rather the election timetable.

Because this timetable has been gazetted, it cannot be changed. As a result, the court heard the case on 8 April and had to hand down a ruling the next day.

As the judges told the parties at the end of the hearing, this meant they would issue an order and the full judgment would come later (this is not unusual; courts do this in many urgent cases).

However, it does mean many people will now be discussing the ruling without knowing why the court ruled in this way.

The judges should never have been put in a position where, facing such a tight deadline, they had to make a controversial decision. Steps need to be taken to ensure this does not happen again.

Not about MK

We need to reflect on what this decision was and what it was not. It was never about MK, or whether Zuma could be “on the ballot”.

It was only about whether Zuma could be a candidate for Parliament. The outcome of this case has no bearing on whether MK is registered as a party (it has already won that case against the ANC), and it would never have prevented Zuma’s image from being on MK’S election posters.

In the absence of a full judgment, it is impossible to assess whether there are grounds for an appeal – and it is not clear whether the Constitutional Court could hear an appeal by the IEC against this decision.

However, if the IEC were to appeal, that would cause further complications. The question of Zuma’s eligibility for Parliament because of a sentence he received would have to be decided by the judges who imposed that sentence.

He would surely argue that most of the judges on the Constitutional Court are conflicted and should not hear the case.

That alone may force the IEC to decide that an appeal is not worth proceeding with.

But the IEC is not the only party in the matter. One of the others is a person who lodged the objection with the IEC, named in court documents as Dr Maroba Matsapola.

As a party in the case, he would surely have standing to appeal, if he so chose.

Consequences

It is hard to know how this will play out, because so many of the circumstances are unprecedented. But if there is no appeal (the most likely outcome) this could allow MK and Zuma to claim that the electoral court’s decision is proof that the IEC is biased against them – and not to accept the IEC’S announcement of the election results.

There are other consequences too. Imagine, for a moment, that it turns out there are serious problems with the electoral court’s reasoning that an urgent ruling was necessary. It could set a precedent for other candidates, or it could turn out that the court was split three-to-two on a particularly contentious issue.

If there is no appeal now, the decision stands, and Zuma could be in Parliament for the next five years.

The most immediate effect of the decision is to give MK huge momentum. This will force other parties to energise their campaigns. There are likely to be more surprises in store. DM