PLAYING WITH FIRE
As the local government election race hots up, the Independent Electoral Commission has found itself in the middle of the fray. But this week’s Constitutional Court ruling vindicates its recent decisions
The DA has upped the ante in its battle against the Electoral Commission of SA (IEC), warning that it may challenge the outcome of the November 1 local government election in court. This, after party lost its bid to stop the commission from reopening the process to register councillor candidates for the poll.
It’s made for a dramatic week in SA’s electoral landscape. But it isn’t the first time the IEC has come under fire from political parties — and it’s unlikely to be the last.
Back in 2014, the EFF accused the commission of rigging the election so that the ANC could win Gauteng. That never went anywhere, as the party had no proof to back up its claim.
Then, in 2016, ANC secretary-general Gwede Mantashe summoned the IEC top brass to Luthuli House after the party’s dismal performance in the local government elections.
There, he reportedly launched an unjustified attack on its senior officials, in particular the IEC’s then deputy commissioner, Terry Tselane, accusing him of being an “enemy” and “fraternising with the opposition”.
The DA, for its part, seems to be making a habit of attacking the commission on the eve of an election. Recent events are reminiscent of 2016, when DA federal chair Helen Zille delivered a broadside against the IEC ahead of the local government poll, saying the vote was unlikely to be free and fair.
“It goes without saying that if the IEC becomes an extension of the ruling faction of the ANC, we can kiss free and fair elections goodbye,” Zille said at the time.
Any subsequent suggestion of IEC partisanship was absent after the DA won control of the hotly contested metros of Joburg, Tshwane and Nelson Mandela Bay through coalition agreements with other parties.
The most recent tensions arose from the ANC’s failure to timeously submit nominations for candidates in 94 municipalities and the IEC’s decision to reopen candidate registration, following the reopening of voter registration this past weekend. Had the IEC not reopened the candidate registration process, it could have cost the ANC its position in 23 municipalities.
Earlier this month, the DA approached the Constitutional Court to prevent the reopening of this process — an application the court dismissed this week.
The apex court found that the IEC had been within its rights to act as it did, and that the DA had provided no evidence — in court papers, at least — of any alleged bias by the commission towards the ANC.
In response to the judgment, DA leader John Steenhuisen dramatically declared that his party would challenge the outcome of the election, should “further evidence” of the IEC’s bias reach his party.
The problem, for Steenhuisen and the DA, is that the party failed to provide any such evidence in the first place.
But the bigger issue, as far as analysts are concerned, is the chance that the DA blames any decline in electoral support, come November 1, on alleged IEC bias. This could erode the credibility of the election and, ultimately, weaken the constitutional dispensation — an outcome that would play into the hands of populists.
Lawson Naidoo, executive director of the Council for the Advancement of the SA Constitution, is scathing about the DA’s position, calling it “extremely reckless politicking”.
This is not simply a storm in a teacup, he says: an elections management agency is critical to the very functioning of democracy.
What it means: ANC and DA insiders agree that independent candidates pose a threat, particularly when control of a municipality hinges on a few votes
In Naidoo’s view, the DA’s conduct has been “outrageous” — starting with Zille creating the storm, when she suggested, on Twitter, that the IEC had colluded with the ANC to allow it to resubmit its candidate lists. Yet in court papers, the party was unable to produce any evidence, and referred instead to “perceptions of bias”.
Instead of letting up after the Constitutional Court pronounced that the IEC had acted legally, Steenhuisen issued his threat to challenge the outcome of the election in the
event of “further” evidence emerging.
“This is really dangerous politicking,” says Naidoo. “You cannot attack such a key institution without a shred of evidence … and then proceed to preemptively accuse the IEC of bias and say you will challenge the outcome in court. It is dangerous, it erodes the credibility of the institution, and it ultimately weakens our constitutional democracy.”
IEC chief electoral officer Sy Mamabolo makes a similar point in court papers, pointing to the danger of insinuating bias against the commission without any proof.
In a briefing on Monday, he suggested that the IEC has been vindicated by the Constitutional Court judgment, saying “the court held that on the papers before it, the impartiality of the IEC could not be impugned”.
Elections expert and former IEC official Tselane, too, believes it’s clear that the commission made the right call in reopening the candidate registration process.
Tselane concedes that the IEC should have held bilateral meetings with the DA to allow the issues to be ventilated. But he warns that the party is coming close to violating the electoral code of conduct, by which all political parties are bound and which commits them to behave responsibly to ensure confidence in the IEC.
“Unless there is clear evidence of bias, parties are expected to ensure that voters have confidence in the election management process,” he says.
The ANC was not the only party that wanted the candidate registration system reopened, says the party’s elections head Fikile Mbalula.
“We as the ANC did not want elections in October, but here we are fighting to win an election we were not ready for. We are living with that,” he tells the FM.
“The DA won — they said they were ready for elections in October, they won. Now they want to win elections through a technicality. It doesn’t work like that.”
Mbalula is expecting a “difficult election” — but the party at least managed, this time, to submit its councillor registrations ahead of the deadline of Tuesday at 5pm.
The Freedom Front Plus (FF-Plus) was among 10 other parties that supported the IEC move to reopen the candidate registration process.
FF-Plus elections head Wouter Wessels tells the FM this was not a point of politics or principle, but a straight legal decision. And, as the Constitutional Court found, the commission’s legal reasons were sound.
Take the issue of special votes as they apply to the electoral timetable, Wessels says: reopening voter registration means holding registration for special voters thereafter, to ensure those who have registered are then allowed to apply for special votes.
He believes candidate registration follows the same principle. Newly registered voters may want to stand for election in their ward, and should be allowed to do so.
“They should be allowed to stand in terms of section 19 of the constitution,” Wessels says.
The reopening of the candidate registration process has been compared with a failed bid by the National Freedom Party in the last election to make late payment to register as a political party.
Wessels believes that comparison is unfair. While he says it is “unfortunate” that the move has benefited the ANC, the decision is, in his view, legally sound and correct.
“You can play a populist game, but then you must also look at the consequences of that,” says Wessels. “I know politics is a dirty game, but you should have some integrity.”
You can’t attack such a key institution without a shred of evidence … then preemptively accuse the IEC of bias
Lawson Naidoo
In Wessels’s view, a failure to reopen the candidate registration process would have disadvantaged independent and new candidates more than it would the ANC.
It’s a point on which One SA Movement leader Mmusi Maimane agrees. He tells the FM the reopening of the process has allowed his movement to assist with the registration of a number of candidates and associations in the Gauteng municipalities of Ekurhuleni, Joburg and Emfuleni.
These candidates are mostly community activists, he says; they’re not affiliated to any party, have not been kicked out of their parties, and are not disgruntled members of any of the larger parties.
Maimane, who was himself effectively booted out by the DA after its dismal 2019 election performance, says the reopening of the process has enabled his movement to register a number of new candidates in DA strongholds such as Cape Town, too.
“Never in the history of this country have big political parties been so discredited, from the ANC to the DA,” he says.
That seems to be borne out in the larger parties’ internal polling, which shows them to be on the back foot.
That could benefit independents.
ANC deputy secretary-general Jessie Duarte has admitted that independent candidates are set to cause the biggest upset in the upcoming polls. DA insiders, too, say that independent candidates pose a real threat — particularly when control of a municipality hinges on very few votes.
But much will ride on the next few weeks. While the IEC is far from perfect, it should not be impugned — in the absence of any evidence — to further the sectoral interests of any one political party.
Parties that cry wolf place the electoral process — the beating heart of a democracy — at risk.