Moseneke recommends local elections be delayed until February 2022

Former Deputy Chief Justice Dikgang Moseneke has recommended that this year’s local government elections be postponed until next February 2022, saying the Covid-19 pandemic meant that would not be possible to hold a free and fair vote this October as scheduled.

Delivering his report on Tuesday at the Electoral Commission of South Africa (IEC), based on hearings he chaired, Moseneke made clear his recommendations were not legally binding. 

“Having considered all the submissions, applicable law, research on electoral practice during the Covid-19 pandemic and the related science, we conclude that it is not reasonably possible or likely that the (elections) scheduled for the month of October 2021 will be held in a free and fair manner as required by the peremptory provisions of the Constitution and related legislation,” he said.

“We go further to find the scheduled elections are likely to be free and fair if they were to be held no likely before the end of February 2022.” 

Moseneke said his reasons were grounded on scientific evidence and recent lockdown restrictions around the pandemic.

He reasoned that the scheduled voter registration timetable was set for six days after the expiry of current level four lockdown regulations, which were likely to be extended, adding that most of the processes that had to be performed in accordance with the draft voter registration timetable would not be reasonable. Voters who were unable to register electronically would be disadvantaged, the former chief justice added.

He said political parties and independent candidates would also be affected by the lockdown regulations announced by President Cyril Ramaphosa which prohibiting any political activities, including campaigning.

The Economic Freedom Fighters party has been calling for the postponement of the elections, and will see Moseneke’s report as a vindication of its position. The party also wants a synchronisation of South Africa’s local, provincial and national elections. 

Moseneke also cited applications by the IEC to postpone by-elections among the reasons which informed his recommendation. 

He said as much as the IEC had proclaimed its readiness for the elections, historically it had also made the correct call that “measures made by the government to promulgate the continued spread of the pandemic had an adverse impact on the likelihood of the by-elections being fair and free”.

He said the IEC’s concern during previous by-elections was justified because under a state of national disaster, the constraint on the movement of people, gatherings and political party activity would not allow voters to enjoy their right to a free and fair ballot process.

“The concern is heightened when South Africa is placed on an alert level with more heightened restrictions during the run-up to and at a time earmarked for the [local government elections],” he said, noting that the freedom to participate in elections was enshrined in the constitution, including the freedom of political parties to advertise, interact and communicate with voters.

He added that while major political parties would be able to advertise and shift to digital platforms with voters, independent candidates and smaller parties had fewer resources to do so, hindering voters’ ability to make political choices. 

The IEC hired Moseneke to look into whether the local government elections scheduled for 27 October should proceed or be postponed due to Covid-19.

On Tuesday, he said he had relied on science experts, including those on the coronavirus in the health department’s advisory committee and the government’s chief adviser on the pandemic, Professor Salim Abdool Karim. 

The experts’ opinions converged and agreed on much of the opinion on the pandemic, Moseneke said, adding that the scientists also agreed that the actual number of infections was likely three times higher than the official record.

“Under-reporting is extensive, they say. Deaths are often under-reported because hospitals are often remarkably busy or are not suited to do so … Threat to life and limb is often much higher than the official records suggest,” said Moseneke.

The scientists were of the view that October would be a period of lower infections but holding the elections then would result in a resurgence the country would be unable to manage. 

Moseneke said should the IEC seek to implement his recommendations, it should approach a court of competent jurisdiction with speed to seek an order to defer the elections.

IEC chair Glen Mashinini said Moseneke’s report was weighty and required a weighty discussion by the commission, which would engage with stakeholders including political parties on the matter. 

The spokesperson for the main opposition, the Democratic Alliance’s Siviwe Gwarube, said the  party did not support the postponement of the elections, which it felt could be held within Covid-19 protocols. 

“Arguments that the [elections] will lead to increased Covid-19 infections can be disputed in light of the various by-elections that took place since the start of the state of disaster. Furthermore, most scientific models at this stage predict that there is a very good possibility that infection rates will be stable and even low in the period immediately before and on 27 October,” she said.

“We also argued that it should not automatically be accepted that government will be able to vaccinate the number of people necessary to achieve so-called herd immunity by February 2022.”

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Lizeka Tandwa
Lizeka Tandwa
Lizeka Tandwa is a political journalist with a keen interest in local government.

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