IEC officials erect a banner at a voting station in the troubled township of Khutsong on the West Rand. 010306. File photo
IEC officials erect a banner at a voting station in the troubled township of Khutsong on the West Rand. 010306. File photo

Concourt’s elections order ‘unclear on legal implications’

By Opinion Time of article published Sep 18, 2021

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OPINION: Symbolically, it is important that the Constitutional Court created this opportunity in order to strengthen the public perception that the voters are most important, and not the parties, writes Prof Dirk Kotze.

The electoral dialogue is currently dominated by the question of whether the Electoral Commission of South Africa (IEC) could amend the existing electoral timetable to allow for new candidate nominations.

The Constitutional Court’s (Concourt) order on September 3 referred specifically to the amendment of the timetable for the purpose of voter registration but did not refer explicitly to candidate nominations. It has, therefore, become a question of interpretation of the court order. For us, the question is: how can this affect the election dynamics and does it create other opportunities for the parties?

The complicating factor in the court’s order is that it set aside the original election proclamation of August which activated the election timetable.

The two are inextricably linked. The order, however, did not set aside the timetable but determined that its implementation should continue. For some time, therefore, the timetable will continue without a new election proclamation.

The court clearly adopted a pragmatic approach but with unclear legal implications.

The Constitutional Court’s main focus was on creating another opportunity for voter registration. It did not refer at all to candidate nominations.

Amending the election timetable is possible in terms of the Local Government: Municipal Electoral Act if it is necessary to ensure a free and fair election and if the voting day has been postponed.

The court also added that it has to be “reasonably necessary”. Even within this framework, the court referred only to voter registrations but not to candidate nominations.

Significant in the court’s approach, it did not refer to the Moseneke report or its conclusions about the public health implications of the Covid-19 pandemic.

In view of the fact that the court instructed the minister of Co-operative Governance and Traditional Affairs (Cogta) regarding the election proclamation, it could have done the same regarding the same minister’s mandate to regulate on the pandemic regulations.

Given the fact that voter registration can continue and that parties are again busy with candidate nominations, what are the implications for the ANC?

Many believe that the ANC influenced the Concourt’s decision that the timetable could be amended, or the IEC’s interpretation that it includes a resumption of the nomination process, and therefore one has to determine what type of advantage the ANC will gain from it.

The obvious advantage is that the ANC can correct the mistakes it made with the original nomination process. But it is no guarantee that they will win the seats now contested by ANC candidates.

Public opinion must still determine whether they are acceptable as representatives and the ANC’s legion of problems and poor governance record are serious hurdles to overcome. It is true that as a party it did relatively well in the more than 230 local by-elections since October 2020.

The ANC is also faced with the unintended consequence of the new nomination opportunity – violence and intense jockeying for positions.

Killings in KwaZulu-Natal in the past week reinforce the province’s notorious experience of political murders within the ANC.

In the past this was used to eliminate incumbent councillors, senior municipal officials or incoming candidates to create space for alternative candidates or appointments. It appears to have happened again. It resembles 2011’s volatile nomination process which caused the ANC to appoint its own committee of inquiry chaired by Dr Nkosazana Dlamini Zuma.

Opening the nomination process now for a very short period amplifies the precious opportunity to be nominated.

The competition is therefore more intense and more serious incidences are occurring. For the ANC, it has become a precarious period.

The new opportunity for the registration of voters might have less of an impact on the election.

Symbolically, it is important that the Constitutional Court created this opportunity in order to strengthen the public perception that the voters are most important, and not the parties.

The IEC expects that more than one million new voters can be registered in this period.

*Prof Dirk Kotze is a lecturer at the Department of Politics at Unisa.

** The views expressed here are not necessarily those of IOL and Independent Media.

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