Experts slam ANC and EFF calls to delay election
29 January 2021
Last night ActionSA held a webinar with ActionSA President Herman Mashaba, former IEC Deputy Chairperson Terry Tselane, and Constitutional Law Expert Mark Oppenheimer on calls made by the EFF and ANC to delay the 2021 local government elections to 2024.
ActionSA has been critical of what has amounted to ulterior motives on the part of the ANC and EFF who seek to cloak their real reasons for delaying elections behind a false concern for the safety of South Africans 7-9 months from now.
Here are some of the highlights that emerged from the discussion:
“All of us, my family included, have lost loved ones. I still believe elections can be held and held safely. We cannot allow parties like the ANC and the EFF to deny South Africans their right to vote. Their motives underlying this call have anything to do with protecting South African voters but everything to do with protecting the political self-interest of these parties. Over the past year we have seen the ANC loot COvid-19 funding, profit from dodgy PPE tenders and fail to prepare our healthcare system for the onslaught of this disease. I believe the call to postpone elections stems from the fear of voter rejection. Nobody can predict what the pandemic will be like 7-9 months from now.” Herman Mashaba.
“Section 1 of our Constitution has a super protection. If you want to change this you require 75% of parliament to amend anything in this section. It talks about the founding values of South Africa, one of them is this commitment to democracy where section 1(d) requires regular elections. Any call for elections to be held on a irregular basis, and I understand the call is to delay the elections for 3 years, would be a breach of section 1 of the Constitution.” Advocate Mark Oppenheimer
“The Constitution and the legislation do anticipate moments when there could be postponements. Local Government Municipal Electoral Act indicates that the Commission [IEC] can request the Minister to delay the election but still that postponement cannot take place outside the 90-day period of the date of the last elections. Any effort to delay the 2021 elections will require you to change the Constitution. Terry Tselane.
“Section 159 talks specifically about municipal elections and that they must be held every 5 years. There is room for some deviation, there is a 90-day postponement period that could be accommodated but elections must be held regularly every 5 years. The language that is used is that the Council that is elected, which includes Mayors, their term expires every 5 years. Unless you change the Constitution, this means that all of those elected municipal officials would no longer have a mandate to govern.” Advocate Mark Oppenheimer.
“The mood out there, it is the fear of these political parties to face the next election. Particularly as it relates to the ANC. Over the past few elections, they [the ANC] have been getting one big hiding after another. The next ones [elections] the ANC is going to see a bloodbath. We do not live in a monarchy, we live in a constitutional democracy where for you to be in public office, you should be there on the mandate of the voters. Are these political parties’ prophets to forecast the state of the pandemic later this year? It has more to do with a fear of facing the elections than the actual issue they are expressing concern for” Herman Mashaba
“Democracy is too important to be postponed. Citizen participation is a Human Right with a social contract between the voter and the government and all those who are elected. Those who do not have to leave office get comfortable about extending their rule forever. The voter does not have a recourse, particularly those living in areas where there is corruption and a lack of service delivery.” Terry Tselane.
“So, I gather that the EFF have proposed a private members’ bill to change the Constitution so that they can merge the election dates. They [EFF] say it is not only about Covid, they like the idea of national and municipal elections being held simultaneously. If you are going to postpone the elections for a period of 3 years, it would be insufficient to use a 2/3rd majority used for changing the Bill of Rights. You would need 75% to change Section 1 of the Constitution.” Advocate Mark Oppenheimer.
“There are many countries that have actually held elections during Covid. One of the most important countries, and I am mentioning this country because even during the war they never postponed an election. I speak of the Republic of Korea. Even with Covid the Koreans have been able to achieve safe elections by putting in place protocols to deal with Covid without sacrificing democratic processes.” Terry Tselane
“The other thing to be born in mind is that if you are to change the Constitution, you have to go through a certain process you cannot just change it. If you think about the calls to change Section 25 of our Constitution, the property rights section, this is a process that is still ongoing, has taken many years, requires an enormous amount of public consultation… so it would be quite difficult to make this change before the deadline.” Advocate Mark Oppenheimer
“Something that deeply hurts me is to see how many times civil society has to take government to court to do what they are supposed to do constitutionally.” Herman Mashaba
In offering advice to the IEC at this point and South Africa at large:
“It is important that South Africans are aware of what the decision will be. Part of it is a communication challenge so the IEC needs to say we are going ahead, these are the measures we are putting in place and that we will ensure that our democracy survives the pandemic. Government has said there will be a full vaccine rollout y the end of the year, if elections are held in November, there should not be a health crisis unless government does not believe it really can rollout a vaccine within this time, s this might be it showing its hand.” Advocate Mark Oppenheimer.
“They have to prepare to have the elections within the constitutionally stimulated period, they have to co-operate with the authorities to be able to observe the health protocols.” Terry Tselane.
“I would like to make an appeal to all political parties in Parliament. I would dread to live in a country where we compromise our constitutional framework. We are sitting with massive challenges which requires a government with a mandate to run our country.” Herman Mashaba
* Members of the media who would like the full recording of the webinar may access it through Lerato Ngobeni.
Issued by Herman Mashaba, ActionSA President, 29 January 2021
