It is the Supreme Court of Appeal overturning Oscar Pistorius’ manslaughter conviction, in favour of one for murder, that dominates the headlines. But this week’s Constitutional Court ruling around what appears to be a trifling municipal squabble has potentially far wider-reaching consequences.
The real stress test of a democracy is whether the governing party allows itself to be voted from power. Given the history of post-colonial Africa, this is not something about which we should allow ourselves to be naively sanguine.
That is why the stinging defeat the Constitutional Court has handed the Independent Electoral Commission (IEC) is important. It revolves around events, as Acting Judge Malcolm Wallis notes in the judgment, “that might be thought to be of little moment, save to the citizenry of Tlokwe … [but go] to the heart of our constitutional commitment to a democratic and open society in which government is based on the will of the people”.
The court unanimously ruled that because of irregularities tolerated by the IEC, by-elections in 2013 in seven wards of the Tlokwe local authority were not “free and fair”.
The by-elections had been triggered when African National Congress councillors defied the party whip over a motion in support of the ANC mayor, who was accused in a forensic probe of corruption. Because of their actions, the opposition Democratic Alliance wrested control of the council and, in response, the ANC expelled the rebels, triggering by-elections.
Now standing as independents, the former councillors were denied access, by the IEC, to the full voters’ roll, inhibiting their campaigning. Many who turned up to vote on polling day proved to have been bussed in from outside the contested wards, presumably by the ANC.
In addition, more than a 1 000 voters, the IEC admitted after a cursory examination, had been registered in the wrong wards. While the court does not directly apportion blame for this to the IEC, the inference is there.
“What is troubling … is that there is no explanation of how the incorrect registrations were made … Was that purely random? It would be surprising if it were.”
Some would argue that since the elections have now been set aside and will be rerun, all is well. Not so.
The IEC’s credibility is at the very heart of our democracy. Among the most arresting images from our history are the 1994 aerial views of voters in long, switchbacking lines, waiting patiently to cast their ballots for the first time in a democracy.
As it turned out, there were all kinds of procedural and voting snags. The IEC, established barely a year earlier, had to scramble to salvage a potentially volatile situation.
Polling was extended by a day in some areas and it took three days to announce the results. Despite the suspicion and antagonism between the main parties — the apartheid-era National Party, the liberation standard-bearer ANC and the Inkatha Freedom Party, which had only agreed to participate at the last moment following a protracted and violent rivalry with the ANC — all accepted that the results, on balance, were “free and fair”.
It was enormous triumph for the IEC, which burnished its reputation in four further flawlessly executed general elections through to 2014. It seemed that the IEC had saved SA from the spectre of stolen elections that has caused such misery elsewhere in Africa: intimidation, “no-go” areas, rigged voters’ rolls, stuffed or missing ballot boxes, and electoral officials systematically subverting the process to favour the governing party.
But there is a faint stench of rot emanating from the IEC. The only clearly “opposition” voice, Raenette Taljaard, resigned as a commissioner in February and is yet to be replaced.
IEC Chair Patsy Tlakula resigned in the wake of corruption claims. She was replaced by Glenton Mashinini, a trusted ally of President Jacob Zuma. Now comes this judgment.
A malfunctioning IEC is a serious problem. Municipal elections, the judges point out, are “particularly vulnerable to manipulation” and there is no doubt that the ANC fears serious reversals in next year’s local government elections.
Over the past months, there has been a groundswell of scepticism from all the major opposition parties, as to whether the IEC has the capacity and/or the will to conduct these elections properly. Economic Freedom Front leader Julius Malema has already gone so far as to accuse the IEC of colluding with the ANC to “steal” elections.
This judgment now places a heavy burden on the IEC. The court rejected the IEC argument that because most of the independent candidates lost by substantial margins, that any irregularities were moot.
As Wallis put it, “It is essential to hold the IEC to the high standards that its constitutional duties impose upon it”, whatever the contested outcome. There is no place for it to hide from that responsibility.
The IEC, then, is a fulcrum on which SA’s democratic credibility balances. We cannot afford for it to wobble.
Follow WSM on Twitter @TheJaundicedEye