The election date could change pending the outcome of a Constitutional Court hearing on citizens voting abroad, analysts said on Friday.
University of the Western Cape law professor Pierre de Vos said there are provisions in the Electoral Act for a postponement of the election if the Independent Electoral Commission (IEC) is ”not ready” to proceed with the poll.
President Kgalema Motlanthe proclaimed the election date on Thursday, setting it down for April 22. However, De Vos said while the option was available, it was unlikely that this would happen.
”During the last election after the proclamation order for prisoners to vote, the Constitutional Court directed the IEC to take the necessary steps in the time period [leading to the election date] to make that possible.
”If they confirm the high court ruling in this case, they would really try to do that [order the IEC to make arrangements within the time period] rather than changing the date,” he said.
He said in principle the court’s remedy could include moving the date but added that he would be ”very surprised” if this happened.
”Theoretically that can happen, the Constitutional Court has the power to do that but I know they will be very reluctant to. I would be very surprised if that happened,” he said.
Election experts said the IEC faced a ”logistical nightmare” if it were compelled to allow citizens living abroad to participate. It would involve having to set up and staff polling stations in a number of cities around the world.
University of South Africa professor and Constitutional law expert Shadrack Gutto said while it was possible that the poll could be moved, he agreed that it was very unlikely.
”I don’t see them scuttling the elections, I don’t see them declaring that the election should not proceed,” he said.
Gutto said the Constitutional Court’s task in considering the ruling was an arduous one.
”It was an important application to try and clarify legislation … political participation is central to Constitutional provisions … but the application comes very late and close to the election.
”It will create a real test for the Constitutional Court in the sense that elections cannot be delayed, the terms of office of the current government is prescribed and anything which will delay the process is something that the Constitutional Court will frown upon,” he said.
He said the court may make a declaratory order allowing the IEC and government a particular time period in which to correct the legislation.
The Pretoria High Court ruled on Monday that South Africans living abroad should be allowed to vote.
The court found that the electoral act ”limited” the casting of votes to people temporarily living abroad and referred the judgement to the Constitutional Court for confirmation.
The matter has been set down in the Constitutional Court for March 4 and March 6 if necessary. — Sapa