NEWS ANALYSIS
On the last day of April this year, the leader of the third-largest party in South Africa stood up in front of a large crowd and said the Independent Electoral Commission (IEC) had helped the ruling party to steal elections and would continue to do so.
“The IEC is contesting against the EFF [Economic Freedom Fighters],” Julius Malema said — a claim he made in different ways several times in a speech of nearly two hours.
“South Africa, the IEC did that in Tlokwe [where voters’ roll irregularities in a byelection were proven], the IEC did that in Alexandra [where the EFF claimed irregularities in the 2014 general election], the IEC continues to rig elections.”
In mid-June, the EFF was among the 22 parties that signed the electoral code of conduct, a legal prerequisite for any party or candidate wishing to take part in the polls.
In terms of it, parties are required — under a threat of severe penalties — either to accept the election results or to challenge them in court.
But after the August 3 elections any party unhappy with the outcome in, say, a tightly contested metropolitan area, need only quote the Constitutional Court to suggest that there had been some funny business. They could even choose a judge to cite.
“The August 2016 local government elections will be held on the basis of a defective voters’ roll,” Chief Justice Mogoeng Mogoeng wrote in a majority judgment delivered on Tuesday. And in compiling the voters’ roll the IEC had acted, he said, “in a manner that is at odds with the strictures not just of the law but also of the rule of law.”
That the IEC had failed for well over a decade in its obligation to draw up a proper roll was worrying, fellow Judge Mbuyiseli Madlanga said in a minority opinion. “Of particular discomfort is its nonchalant attitude towards this obligation.”
The judgment they delivered in a complex legal saga involving the failure of the IEC to record the addresses of registered voters found a way to allow the August 3 elections to go ahead, averting what every member of the court said had come close to a constitutional crisis.
Although there were three slightly different takes on the matter, the justices stressed that the flaws in the August election, which will be based on a roll no more flawed than that of any election in the previous 22 years, are theoretical.
“The absence of addresses might — not will — result in elections being unfair,” Madlanga said. And, although there was a threat to fairness, Mogoeng wrote, this was “a distant hypothetical possibility”.
But these qualifications may get lost if an expected win turns into a loss. “A court says to us: ‘This thing could be dirty’, then we’re going to think: ‘Hey, somebody cheated’ if it goes wrong,” a party campaigner said this week. “[Do] you think we [are] going to say to our people: ‘We did not do a proper job, sorry?’ That we won’t do.”