DA to consider all its options if IEC fails to uphold its mandate
8 July 2016
The Independent Electoral Commission (IEC) has a constitutional mandate to ensure free and fair elections in South Africa. Regrettably it has, in the past, tended merely to administer elections. It has in the past not ensured that they are free and fair.
Pursuant to Section 77 of the Municipal Electoral Act the IEC has a duty to ensure that when applicable “the chief electoral officer may institute civil proceedings before a court, including the Electoral Court, to enforce a provision of this Act or the Code…the chief electoral officer may intervene in any civil proceedings if the Commission has a legal in the outcome of those proceedings.”
The IEC failed to give effect to this provision and its passivity manifested itself most noticeably in the Tlokwe matter, in which the IEC failed to take decisive action to interdict the flagrant bussing in of voters to register in the Tlokwe Municipality, even though they did not live there. As everyone knows, this was a matter of scathing judgments by both the Electoral and the Constitutional Courts.
The IEC has recognised that it has a duty to ensure free and fair elections and has created the Office of Electoral Offences, although this post has yet to be filled. Part of the job of this office is to ensure that the provisions of the Electoral Act and the Electoral Code of Conduct are adhered to by parties and individuals contesting elections.
Tellingly, the Code enjoins political parties to ensure that its members and office bearers adhere to the Code.
The Electoral Act and the Code provides for a series of prohibited electoral activities. They do not specifically outlaw the abuse of state resources or the abuse of state sponsored advertising. It is for this reason that I will be introducing a Free and Fair Elections Bill into the National Assembly when Parliament resumes. This Bill will specifically regulate government sponsored advertising and the distribution of social benefits, such as food parcels, in the run-up to any election.
An example of government-sponsored advertising is the recent publicisation of the budget speech of Mr Parks Tau. Mr Tau is currently the Mayor of Johannesburg, but he is also an ANC candidate in the coming municipal election. These advertisements specifically endorse Mr Tau, stating that he is a great leader, listing an award for which he has been nominated and concludes by saying "clearly the City of Johannesburg is in good hands".
Any reasonable listener would conclude that the advertisement is only aimed at influencing the outcome of the election in Johannesburg, by promoting the candidature of Mr Tau and the ANC. We contend that this is an infringement of section 9(2) of the Code.
We are inviting the IEC to fulfill its mandate and to order the ANC to compel Mr Tau to remove these advertisements. As a courtesy I yesterday wrote to the Secretary-General of the ANC to alert him to his duties in terms of the Code, and to ask him to order Mr Tau to desist with this advertising. We are now asking the IEC do this.
We are confident that the IEC will accede to our request, but if it fails or refuses to do so we will seek other legal avenues to compel adherence to the Code.
Issued by James Selfe, Chairperson of the DA's Federal Executive, 8 July 2016
