SA’s poll predicament

By Carmel Rickard

Source: Financial Mail

SA would do well to consider the advisory opinion of Africa’s premier regional court on the issue of postponing elections


So many African states are struggling with whether to hold or postpone elections because of Covid that the continent’s premier regional court published an advisory opinion last week, outlining issues to be considered in making such a decision.

The Pan African Lawyers Union (Palu), which requested the advisory opinion, said the Covid crisis offers “unprecedented challenges for democratic governance and the rule of law in Africa”, and that there has been widespread limitation of rights, including the right of citizens to participate effectively in the governance of their country.

Palu wanted the court to underline the principles that should apply in deciding whether to hold or postpone elections under the present world health emergency.

In its response the court was careful not to give its opinion on whether postponement would be better than holding elections as planned, but it did spell out issues to be considered and the standards that such a decision would have to meet. And it reminded states that the conduct of elections is a matter of “continental treaty law relating to the citizens’ rights to effectively participate in the government of their countries”.

The court said that under the African Charter on Human & Peoples’ Rights, states conducting elections during a state of emergency such as Covid still have to respect human rights. Key aspects of the right to participate in the government of a country via elections “cannot be suppressed”, it said, even in an emergency situation.

Key aspects of the right to participate in the government of a country via elections ‘cannot be suppressed’

Elections have to be held regularly, “on the scheduled timeframe”, and any postponement would be an exception to this principle, effectively suspending the right. Though it would be up to domestic law to define the conditions for postponing elections, even then the postponement would have to meet certain conditions. It would also have to be “a last resort”, “strictly necessary” and a move “without which it will not be possible to protect the health and lives of the people and ensure the integrity of the electoral process”.

All of which brings us to the commission, led by former deputy chief justice Dikgang Moseneke, which investigated whether SA’s local government elections, scheduled for October, should be postponed.

In the wake of Moseneke’s report, the Electoral Commission of SA (IEC) is taking legal advice about which court it should approach to ask for a postponement of the polls.

Any court watcher can predict the scenario: the matter will be heard in a few weeks’ time, with judgment reserved. Once delivered, there may be an appeal and that, too, will take time.

The IEC deadline to move into election mode is weeks away. Suppose the courts reject the application, saying the elections must be held as planned. No matter how expedited the process, it would simply be impossible to meet the IEC deadlines for an October poll.Picture: 123RF

Constitutional change

The alternative scenario in Moseneke’s report is to approach parliament to amend the constitution, for which a 75% majority is needed. That won’t be easy to obtain, as the major parties are against postponement.

It’s a bizarre choice: changing a founding provision of the constitution is considered so significant that a 75% majority is needed, but the alternative is that a single judge (or more, depending on the court the IEC approaches) should make this far-reaching decision.

It is extraordinary that, following the government’s changes to lockdown levels this weekend, the people of SA may, with immediate effect, eat out, hold and attend political meetings and even travel for leisure — but they may not vote in elections in two months’ time.

Given the easing of restrictions a week before the end of July, you have to wonder: is this really a delay “without which it will not be possible to protect the health and lives of the people and ensure the integrity of the electoral process”?