IEC Defies Constitutional Court Judgement on Coming Elections

The decision by the IEC to re-open candidate nominations, as communicated to the Party Liaison Committee (PLC) this morning, makes a mockery of the coming elections and our Constitutional Court.

This decision, which provides relief to the governing ANC, defies the requirement that the election timetable remains in effect barring changes necessitated by the Constitutional Court requirement for voter registration to be re-opened.

In this morning’s PLC meeting, ActionSA specifically required the IEC to confirm which amendments to the election timetable are to be made in accordance with 5(c)(iii) and 5(d)(iii) of last Friday’s Constitutional Court judgement. Both sections place a duty on the IEC to make reasonable arrangements to the existing timetable to allow for the registration of voters wishing to participate in the coming elections. These arrangements must also be publicly communicated to voters. No answers could be provided to this question. The IEC has simply elected to ignore the Constitutional Court.

The rationale to re-open candidate nominations, as a consequence of the voter registration weekend, is tenuous at best. It relies on the idea that candidates need the chance to register to vote just like voters – as if candidates did not possess both the self-interest and the opportunity to register at municipal offices or online prior to the election proclamation of 4 August 2021.

The problem with this logic, apart from the appearance that it is highly convenient to the governing ANC, is that it makes a mockery of the Constitutional Court judgement. The Constitutional Court judgement, as delivered on Friday, required the timetable to remain in place. The only latitude this afforded to the IEC to amend the timetable, related to changes arising from the need for voter registration.

Furthermore, the Constitutional Court cited the need for any changes to meet the standard of Section 11(2) of the Municipal Electoral Act of 2000, which necessitates those changes must be necessary for free and fair elections. Political parties knew an election would be proclaimed in early August since May this year. Political party candidates, therefore, had every opportunity and self-interest to ensure their compliance by registering to vote prior to the proclamation in August.

If this move by the IEC was legitimately required for free and fair elections, its focus would have been exclusively placed on affording candidates who were filed and rejected for not being registered voters at the time of their application.

ActionSA anticipates that this latest move by the IEC will be successfully challenged by our courts. When this takes place, we will be writing to the Chairperson of the Parliamentary Portfolio Committee on Home Affairs to hear representations by ActionSA about how the IEC is failing to live up to the expectations of our Constitution.

The IEC has done little, if anything, to deliver a compelling message to all South Africans, of the measures that will be taken to keep them safe while voting. This is essential for every person who wishes to vote, to feel confident in their prospect of doing so without fear. The extension of the election timetable from 5pm to 9pm on 23 August 2021 was done, not by the legal standard of being necessitated by free and fair elections, but because of the IEC being engaged by different political parties – by the IEC’s own admission. Now, this latest decision, cannot be ignored in terms of the manner it serves the political interests of the governing ANC while departing from the Constitutional Court judgement and the Municipal Electoral Act. 

Whil many parties will predictably run to the courts to interdict this latest move, and rightly so, ActionSA will be exploring a different course of action. Rather, ActionSA will be exploring mechanisms in law through which we can hold the IEC to account for its failure to act in accordance with electoral legislation, the Constitution and the Constitutional Court judgement.

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