Statement: Constitutional court’s Tlokwe-judgment a warning to IEC and political parties

30 November 2015

The Centre for Constitutional Rights (CFCR) welcomes a unanimous judgment by the Constitutional Court in which the Court set aside the results of a number of by-elections in Tlokwe Local Municipality and ordered fresh by-elections - because the elections were not free and fair.

In its recent judgment in Kham and Others v Electoral Commission and Another, the Court also declared that, in future, when registering a voter to vote in a particular voting district, the Independent Electoral Commission (IEC) is obliged to obtain sufficient particularity of the voter’s address to enable it to ensure that the voter is at the time of registration ordinarily resident in that voting district.

The IEC must also in all future municipal elections or by-elections provide all candidates in municipal elections, on the date on which they are certified, with a copy of the segment of the national voters’ roll to be used in that ward in that election, including the addresses of all voters, where these addresses are available.

The right to vote is fundamental to our constitutional democracy. In terms of section 1 of the Constitution, “universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness” is a foundational value of our democracy. This value is embodied in section 19 which determines that “every citizen has the right to free, fair and regular elections for any legislative body established in terms of the Constitution” and “to vote in elections… and to stand for public office and, if elected, to hold office”. The IEC must, by virtue of section 190 of the Constitution, give effect to these rights by managing elections of national, provincial and municipal legislative bodies in accordance with national legislation and by ensuring that those elections are free and fair. In the Kham-case, however, the Court held that that the by-elections in question were not free and fair because the IEC “fell short of those standards… put in place by legislation and the IEC itself for the conduct of free and fair elections”.

In this case, the Court found that the IEC failed the test. It was “non-compliant 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 thirteen-year period”. According to the Court, the IEC also “revealed that, in nearly one-twelfth of new registrations in the affected wards, it did not obtain addresses or information from voters that would enable it to perform this statutory obligation…”. In this regard and reflecting on a very limited investigation conducted by the IEC in relation to the Tlokwe Local Municipality, the Court noted that that between 2000 and 2014, 1040 out of 3832 newly registered voters were registered in the incorrect ward and that the addresses of another 332 voters “were so sketchy that it was impossible to say whether they were registered in the correct ward”. The IEC could not explain how these incorrect registrations were made and “proffered no satisfactory explanation for this occurring, seeking instead to shelter behind a contention that it is not obliged to verify voters’ addresses”.

The Court stopped short of blaming the IEC for intentionally acting in the matter it did, but did raise serious questions about the IEC’s inability to explain its conduct. Consequently, the Court remarked that it is expected of the IEC to ensure that the people who are registered as voters and permitted to vote should be limited to those who are legitimately entitled to vote. In this regard, the Court remarked that the process of voter registration, especially in relation to provincial and local government elections, is particularly vulnerable to manipulation. Accordingly, an election conducted “when there is a serious question as to the reliability of the voters’ roll cannot be described as free and fair”. This is so because “if voters can be brought from outside, into a ward where the political balance is unclear, their votes may influence the outcome of the election at a ward level and even the outcome of an entire municipal election. We cannot shut our eyes to the reality that there are municipalities that are finely balanced electorally, where the result in a single ward may affect the balance of power in the municipality.”

Apart from its unambiguous criticism of the IEC, the Court also had some warning words for political parties and their supporters: a free and fair election “demands the freedom to canvass; to advertise; and to engage in the activities normal for a person seeking election… Phenomena like “no go” areas; the denial of facilities for the conduct of meetings; disruption of meetings; the destruction of advertising material or the intimidation of candidates, workers or supporters, could all prevent an election from being categorised as free and fair.” Given the upcoming local government elections in 2016, certain political parties and their supporters may want to take note of this warning.

Nevertheless, the Constitutional Court, as guardian of the Constitution and our constitutional democracy, and on behalf of the people of South Africa, in no uncertain terms issued a stern warning to the IEC and political parties alike: “Electoral legitimacy and the integrity of the electoral process are of enormous importance in South Africa.” As such, the IEC, as an institution supporting constitutional democracy in terms of Chapter 9 of the Constitution, must be held to the highest standards imposed by the Constitution. Its integrity and impartiality must be guarded at all cost. Once the IEC is perceived to be biased - whether because of the Commissioners appointed to serve on the IEC, their conduct, or because of conduct such as seen in the Kham-case - the citizens of South Africa will lose faith, not only in the integrity of the IEC, but also the democracy which this institution is supposed to be serving.

Issued by Adv Johan Kruger, Director, Centre for Constitutional Rights, 30 November 2015