OPINION – South African citizens will be voting in local government elections on October 27.
However, due to the Covid19 pandemic and lockdown restrictions, concerns have been raised about whether the elections will be free and fair.
The Independent Electoral Commission (IEC) appointed retired Deputy Chief Justice Dikgang Moseneke to lead an Inquiry into “Ensuring Free and Fair Local Government Elections during COVID-19” and to report to the IEC. The inquiry will enquire into, make findings and report on, and make recommendations about what will ensure that elections will be free and fair, in view of: (i) the challenges posed by the Covid-19 pandemic and measures to curb the continued spread of the pandemic; and (ii) any additional measures that the IEC should implement in order to realize free and fair elections within the context of the pandemic.
Section 19 of the Constitution provides that every citizen has the right to political choices which includes the right to stand for public office, form a political party, vote in free and fair elections. In the case of Kham and Others versus the Electoral Commission and Another 2016 (2) SA 338 (CC), the court emphasised that “Universal adult suffrage on a common voters roll is one of the foundational values of our entire constitutional order”.
In the United Democratic Movement versus the President of the Republic of South Africa (2002) ZACC 21; 2003 (1) SA 495 (CC), the Constitutional Court stated: “A multi-party democracy contemplates a political order in which it is permissible for different political groups to organize, promote their views through public debate and participate in free and fair elections.”
In order for an election to be free and fair, a citizen must have the proper environment within which to vote, must have the right to contest the elections and political parties must have the opportunity to mobilise and campaign. This inter-relatedness between the right to vote and voting in free and fair elections was confirmed in the Constitutional Court case of New Nation Movement and Other versus the President of the Republic of South Africa and others, CCT 110/19.
The Constitutional Court emphasised: “The condition reveals the inter-relatedness between the right to vote and the right to free, fair and regular elections which is guaranteed by section 19(2). If the elections are not free and fair, there can be no proper exercise of the right to vote and consequently the content of the right to vote itself would be emasculated”.
If the elections are not free and fair, it will place our entire democracy and constitutional order at risk.
Challenges posed by the Covid 19 pandemic
South Africa has been under a national lockdown due the Covid 19 pandemic since March large year, is under the third wave of the pandemic and under national lockdown level two.
Under the regulations, gatherings are restricted to no more than 100 people indoors and 250 people outdoors. Physical distancing is required, and masks are to be worn. The slow pace of vaccinations makes it questionable whether all citizens will be vaccinated by October.
The government has had to cut budget allocations across departments. This includes the IEC.
The budget cuts may impact the human resources needed to monitor and ensure compliance with restrictions. For example, additional resources will be required such as personal protective equipment (PPE) for election staff and volunteers, sanitising products for voters and e-learning modules for training. Not having sufficient resources could impact the free-and-fairness of the election.
This limited funding will also impact the IEC’s ability to respond proactively to conflict prevention and resolution including the roll-out of conflict monitoring and mediation programmes in high-risk areas.
Established political parties have a footprint in communities. New political parties and independents may have challenges mobilising and campaigning because of lockdown restrictions. Online campaigning is an option. However, the high cost of data and the low broadband in rural areas may be a challenge.
Measures to ensure free and fair elections
The IEC should approach the National Treasury for more funding in order for local government elections to proceed freely and fairly. After all, this is not a departmental programme that the IEC is making redundant but an election of political office bearers for local government elections. These political office bearers will set policy, steer local government and ultimately, be the voice of the people. Another option is for the IEC to seek funding from the Solidarity Fund and other international bodies supporting free and fair elections.
The SANDF can be deployed to assist the IEC with required human resources to ensure compliance with the restrictions. If it does not impede any labour law rules, government employees could also volunteer time to assist the IEC.
The SANDF could be deployed in high-risk provinces such as, KwaZulu-Natal, Limpopo, the Eastern Cape and North West, where there is the likelihood of violent protest.
Complying with the restrictions may prolong the estimated time a voter will spend in a voting centre and, therefore, the IEC should consider holding the election over two days.
To avoid the need to remove the masks, the IEC should also consider other measures of identifying voters.
Local government elections are about campaigning for community wards. Independents or smaller and newer political parties should be acquainted with the community or ward it is campaigning for. However, to ensure fairness, the IEC should consider increasing the funding to political parties and independents.
In order maintain our constitutional order and democratic project, it is imperative that the local government elections proceed on October 27 and that it be free and fair.
Zelna Jansen is a lawyer. She is chief executive of the Zelna Jansen Consultancy. The views expressed are not necessarily that of Independent Media.