Flawed voter roll leaves the door open to dissent

Chief Justice Mogoeng Mogoeng. (David Harrison, M&G)

Chief Justice Mogoeng Mogoeng. (David Harrison, M&G)


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.”

Phillip de Wet

Phillip de Wet

Phillip de Wet writes about politics, society, economics, and the areas where these collide. He has never been anything other than a journalist, though he has been involved in starting new newspapers, magazines and websites, a suspiciously large percentage of which are no longer in business. PGP fingerprint: CF74 7B0F F037 ACB9 779C 902B 793C 8781 4548 D165 Read more from Phillip de Wet

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