Once-faultless IEC falters with election fiasco
Very institution designed to uphold democracy defeated by corruption
DOUGLASS North, the economist who died last month, defined institutions as the humanly devised constraints that structure our interactions. These constraints, explained the Nobel laureate, could be formal (rules, laws, constitutions) or informal (norms of behaviour, conventions and self-imposed codes of conduct).
Together, North said in his 1993 Nobel lecture, these constraints define the incentive structure of societies and specifically economies. The political and economic institutions, in consequence, form the underlying determinant of economic performance, he added.
The corruption of the Independent Electoral Commission, an institution that is at the core of any democratic order, is most alarming.
The IEC’s role is prescribed by the constitution, its founding legislation and other laws. At its core, its role is to ensure elections are free and fair. Its corruption can only be to ensure those who want to rig elections have a free hand.
Until three years ago, the IEC’s conduct was beyond reproach. This changed in 2013, when the public protector found that it had flouted procurement processes when awarding a lease contract for its head office. After much dillydallying, IEC chairwoman Pansy Tlakula resigned last year.
But now the Constitutional Court has made damning findings about the commission’s failure to live up to its obligations of ensuring free and fair elections. The case arose from seven ward by-elections in Tlokwe, a municipality in North West.
What’s most disconcerting is the IEC’s performance before the Constitutional Court — specifically in feigning ignorance of the responsibilities imposed on it by the constitution, the entity’s founding legislation as well as regulations drafted by the IEC itself.
The applicants in the Tlokwe case sought relief from the court because of irregularities in the by-elections.
The two key issues were the registration of voters who were not residents of the wards in which they were registered, and the IEC’s failure to make the voters roll available to candidates on time. In all instances, the court ruled, it was the IEC that made the decisions relating to the irregularities.
The court found that the Tlokwe by-elections were not free and fair based on standards laid down by law and the IEC itself. The commission’s conduct, the court said, fell short of those standards.
The IEC could not explain satisfactorily to the court how people were registered as voters in wards where they did not live. Instead, it sought “shelter behind a contention that it is not obliged to verify voters’ addresses”.
“In adopting that stance, it revealed that it was noncompliant with its statutory obligation to ensure that voters are registered in the voting district in which they are ordinarily resident in over a quarter of cases over a 13-year period,” the court said.
The court said it was the IEC’s responsibility to get as much information from a voter as was necessary for it to perform its statutory obligation, including ensuring that the voter was registered in the correct voting district. If there were challenges in carrying this out, the court said, it was the IEC’s responsibility to resolve them. The commission was well aware of these obligations and the challenges that accompanied them. Proof of this was the fact that it had provided its officials with a manual instructing them on how to proceed when registering voters. IRREGULARITIES: Joseph Mooketsi collects firewood in Ikageng, Tlokwe, where, the Constitutional Court has ruled, seven ward by-elections were not free and fair
As a precautionary measure, the court asked the relevant parties at the end of the hearing to state if they foresaw any practical problems were the court to set aside the byelections outcome.
Again, the IEC outdid itself. It argued, for example, that voters might be away during the Christmas period, which could affect the quality of the new by-elections. But, as the court pointed out, the commission had rejected this reasoning when it was put forward as grounds for postponing the December 2013 by-elections.
The IEC showed its sense of humour, too. It asked the court not to set aside the election outcomes for the seven wards. In support of its argument, it quoted the preamble to the constitution, which outlines that government is based on the will of the people.
To make matters worse, its media statement in response to the court’s ruling shows an institution that lives in denial about its culpability in the Tlokwe shenanigans — yet the court clearly spelt out its culpability.
Take this gem: “The electoral commission acknowledges that the responsibility for creating the conditions for free and fair elections is shared by all key stakeholders, including the electoral commission, political parties, independent candidates, civil society, observers and voters.”
Again the court was clear. “The constitution requires that one of the state institutions supporting constitutional democracy must be an electoral commission with responsibility for the management of elections at all three levels of government. The electoral commission’s core responsibility is to ensure that those elections are free and fair.”
I can spy with my mind’s eye a man singing in the shower: “Another one bites the dust, and another one gone . . . ” He is moving this way and that to the bass-heavy beat of the tune by British rock group Queen. He has one more reason to celebrate. Yet another pillar of our democratic order has bitten the dust.
Sikhakhane is deputy editor of The Conversation Africa Comment on this: write to letters@businesstimes.co.za or SMS us at 33971 www.sundaytimes.co.za