Battered electoral body needs to regain its vote of confidence
Local government elections are looming, but the agency tasked with ensuring — and then reassuring SA — that they are free and fair is in a parlous state, says Lawson Naidoo
THE Constitutional Court this week ruled that seven by-elections in the Tlokwe municipality held in September and December 2013 were not “free and fair”.
Their results were set aside and the Independent Electoral Commission was ordered to hold fresh byelections within 90 days. This is the first time since 1994 that an election result has been nullified by the courts.
The Constitutional Court said it was “essential to hold the IEC to the high standards that its constitutional duties impose on it”, “electoral legitimacy and the integrity of the electoral process are of enormous importance in South Africa”, and “It is apparent that the IEC misconstrued its obligations in material respects. This has to be corrected. Overall the balance must come down on the side of electoral integrity.”
That this reflects negatively on the esteem in which the IEC has been held since the advent of our democracy should be a cause for concern for all democrats.
It was accepted by all parties in the case, including the IEC, that there were serious irregularities in the electoral process in those byelections relating primarily to the registration of voters who did not ordinarily reside in the voting districts in which they were permitted to vote. The court lamented: “What is troubling about this is that there is no explanation [by the IEC] of how the incorrect registrations were made.”
The court also castigated the IEC for the late filing of the Electoral Court record and noted that the IEC had to be directed to apply for condonation of that late filing.
The court was not enamoured with the response of the chief electoral officer that it would be “possible but not realistic, workable or viable” to hold by-elections within 90 days. Such an indifferent approach to the courts is not becoming of an independent constitutional body.
There are several other festering issues relating to both commissioners and staff that impact on the credibility and stature of the IEC.
The report of the public protector into the procurement of the lease for the head office of the IEC was published in August 2013. It made far-reaching findings of misconduct, implicating the former chairwoman of the commission, Pansy Tlakula, in conflicts of interest with a representative of the lessee, Thaba Mufamadi, and a flawed procurement process.
Tlakula left office not because parliament ordered that she do so; rather, her resignation was a consequence of legal action that political parties, led by the United Democratic Movement, had to resort to. The electoral and constitutional courts ruled that Tlakula did indeed commit misconduct and that parliament should institute proceedings in terms of section 194 of the constitution, which provides for the removal from office of a member of a Chapter 9 body. Tlakula resigned before such parliamentary proceedings could start.
The Council for the Advancement of the South African Constitution has been monitoring the implementation of the public protector’s remedial actions, many of which have yet to be fully implemented.
A forensic investigation by PwC into the lease agreement confirmed the main findings made by the public protector. This led to the commission seeking a review under the Promotion of Administrative Justice Act to have the lease agreement annulled and set aside, a matter pending before the courts.
The IEC has initiated disciplinary proceedings against chief electoral officer Mosotho Moepya and Stephen Langtry, the manager in the office of the chief electoral officer, for their part in the flawed procurement process, but these have been stalled as Moepya and Langtry have sought a review of the disciplinary process in the Labour Court.
It has also been alleged that the IEC improperly paid the legal fees incurred by Tlakula as she sought to challenge the findings of the public protector. These fees, amounting to some R2-million, were sanctioned by Moepya.
While the constitution provides that the electoral commission should have at least three members, it has generally had five members. It currently has four commissioners, all of whom are African men, in conflict with section 193(2) of the constitution, which stipulates that the IEC should “broadly reflect the race and gender composition of South Africa”.
Vuma Mashinini was appointed to replace Tlakula in April this year and has since been designated chairman by the president. While opposition parties objected to Mashinini’s suitability for office on the basis that he served as an adviser to the president, a more serious objection would be based on his business relationship with Mufamadi, the central figure in the lease debacle, as well as the conflicts of interest emanating from his interests in a private electoral management consulting firm.
The vacancy created by the resignation of Raenette Taljaard in March this year remains. The portfolio committee on home affairs rejected the shortlist of eight candidates presented by the interviewing panel convened by the chief justice, which includes the public protector and representatives of the Human Rights Commission and the Commission for Gender Equality. It said the list did not provide the committee with “sufficient choice”. It would now appear that parliament deems it imperative to appoint a non-African woman to be the new commissioner. The shortlist included only one white woman.
When considering the vacancy created by Tlakula’s resignation, parliament had an opportunity to nominate a woman candidate.
The opposition parties represented on the committee collectively nominated Janet Love, but this was shot down by the ANC members, who were steadfast in their support for Mashinini, even claiming that gender representivity was “not about numbers”!
Subsequent to the rejection of the shortlist by parliament, the president has requested the chief justice to repeat the recruitment process. Nominations have closed and no date has been set for the interviews. At the earliest, therefore, the new commissioner will only be appointed some time next year, leaving little time to prepare for the local government elections.
A chairman without the trust of opposition parties, senior officials under a disciplinary cloud, irregularities in voter registration and conflicts of interest all serve to undermine the IEC’s capacity to ensure that elections are free and fair.
The Constitutional Court acknowledged that there is no universal definition of what renders an election free and fair, but stated that there must be real rather than speculative grounds for making such a determination. Political analyst Steven Friedman has summarised the test as whether the losers accept the results.
As we approach the local government elections next year, the credibility and trust in the IEC must be restored.
It is time for the IEC to get its house in order.
Naidoo is the executive secretary of the Council for the Advancement of the South African Constitution
There are several other festering issues relating to both commissioners and staff