Covid-19 Pandemic Poses Constitutional Dilemma for Local Government Elections

South Africa’s democratic practice of holding regular free and fair elections is facing unprecedented challenges due to the Covid-19 pandemic. This might force the country to postpone the local government elections, scheduled for October, writes Sakhile Mokoena.

The Electoral Commission of South Africa (IEC) recently briefed the Portfolio Committee on Home Affairs on the report from the Moseneke Inquiry on Free and Fair Local Government Elections during Covid-19, which recommended that the elections be postponed until February next year.

The inquiry concluded that “it is not reasonably possible or likely that the local government elections scheduled for the month of October 2021 will be held in a free and fair manner, as required by the peremptory provisions of the Constitution and related legislation”. The inquiry further reported that the Covid-19-related restrictions on the ability of political parties and independent candidates to campaign limits their right to contest elections and to campaign. It also limits freedom of expression and diminishes the freeness and fairness of the election. Similarly, it diminishes the rights of the electorate to vote or to vote on an informed basis.

However, postponing the elections will not be possible without amending the Constitution, which clearly commands that “a term of a municipal council may be no more than five years and, when its term expires, an election must be held within 90 days of the date of expiry of the term”.

The Moseneke enquiry has recommended two possibilities in order to action the postponement of the local government elections. One is an amendment of the constitution, which will require a 75% support in the National Assembly and a support of at least six provinces in the National Council of Provinces.

Another possible recommendation is for the IEC to approach a court of competent jurisdiction to make a decision. “The hurdles to be met in this case is that compelling and exceptional circumstances warrant the extension and critically the extension is to a finite date,” the inquiry reported. “We believe this is a short-term challenge and should not easily lead to the amendment of the Constitution, and also given the timeframes it would be impractical to embark on a process to amend the constitution,” said the Chairperson of the IEC Mr Glen Mashinini. The Electoral Commission decided to go with the second suggestion and will soon launch an application with the Constitutional Court for judicial guidance on the practicality of postponing the local government elections without violating South African laws.

In his report to the IEC, former Deputy Chief Justice Dikgang Moseneke recommends that the elections be deferred to a date not later than the end of February next year, with the expectation that South Africa will have vaccinated the required population numbers in order to acquire herd immunity.

The Chief Electoral Officer Mr Sy Mamabolo said: “February presents the safest and earliest opportunity to have the elections, based on epidemiological projections.”

The portfolio committee commended the IEC for initiating the enquiry. “The committee notes the report and will monitor the process the IEC is going to take with the Constitutional Court, and, post that, we will invite the IEC for further engagements,” said Acting Chairperson of the committee, Mr Mosa Chabane.