Guest Column

The Constitutional Court, the IEC and the voters roll: Untangling the knot

2016-05-11 13:04

Grant Masterson

Programme Manager: APRM & Governance

Electoral Institute for Sustainable Democracy in Africa (EISA)

The Founding Provisions (Section 1) of the South African Constitution describe the most important principles informing its promulgation. Side-by-side in the first paragraph the values of “universal adult suffrage” and “a national common voters roll” are enshrined, right beneath “Supremacy of the Constitution and rule of law”.

If anyone was under the impression that the Independent Electoral Commission’s appeal to the Constitutional Court on the findings of the Electoral Court relating to by-elections in Tlokwe municipality isn’t important, the South African Constitution says otherwise. 

At the heart of the judgment that Chief Justice Mogoeng Mogoeng and his bench will shortly hand down, the right of all adult South Africans to vote in elections must be weighed against the integrity of the country’s voters roll, and respect for the rule of law. The IEC is seeking clarity regarding the instruction handed down by the Electoral Court in regards to an electoral dispute in Tlokwe in 2013.

The Electoral Court judgment stated that all voter details must include “sufficient particularity” to determine their place of residence within a voting district. The IEC has put on record that as many as 16 million of the 24 million registered voters in the 2016 local government elections do not reflect these details, and want the Constitutional Court to clarify how they should proceed.

The legal uncertainty about the voters roll ahead of these elections has already seen the IEC postpone by-elections in multiple voting districts (including Tlokwe), and with less than three months to the 2016 Local Government Elections, time is already in critically short supply for the IEC if the Court decides that it must rectify this matter by updating the roll.

Preparations for national and local elections in South Africa begin more than two years prior to the polling date, however the final three months before polls are a key period for any election management body, and the IEC is arguing that at this point there is simply not sufficient time remaining to revise the national voters register and that it estimates that to do so will take the Commission until 2019. 

Legal counsel for the Democratic Alliance argued that this isn’t good enough and that the Constitutional Court must find that the IEC has not complied with Section 16(3) of the Electoral Act, which was added into electoral law as far back as 2003. Mogoeng and the bench appear inclined to agree, partly as a result of the weak defence offered up by Wim Trengrove on behalf of the IEC.

Trengrove conceded to the Court that he could not confidently assure them that Section 16(3) has been implemented from 2003 onwards. The ramifications of such a finding could potentially disenfranchise as many as 16 million registered voters on the roll. Counsel for the African National Congress have argued that the absence of an address should not in and of itself invalidate a voter’s registration, which would be true, if these weren’t Local Government Polls.

Unlike National and Provincial elections, the 2016 local government elections elect municipal councillors based on a combination of both proportional representation and first-past-the-post methods, calculated on the total number of votes cast in the voting district, and only votes from that district. This means of calculating results makes it possible for gerrymandering to take place – a term that refers to the practice of manipulating district boundaries or voters rolls to dilute/augment the support for specific political parties by “importing” sympathetic voters into a voting district. Where allegations of this nature are alleged and upheld by the courts, as was the case in the Tlokwe by-election, the only defence is to publish the address details of all voters registered in that district in order to audit/clean the roll.

So the Constitutional Court is faced with the very definition of a classic catch-22 situation: to uphold the existing order of the Electoral Court would undermine the constitutionally enshrined value of adult universal suffrage over a technicality (important though it is), while allowing the IEC to ignore it means that the court is party to ignoring a standing order, and to allowing the elections to go ahead with unresolved questions hanging over the polls. Throughout proceedings, Mogoeng and the other judges urged all parties involved to provide them with solutions or a way out, but found little support amongst the various legal counsels, and fewer solutions.

Going into arguably the most contested elections in post-1994 history with lingering doubts over the voters roll is far from ideal, as the ConCourt is well aware. Voters must now hope that our highest court can offer a solution that simultaneously boosts confidence in the IEC, the 2016 local government elections and doesn’t exclude voters based on their status – South Africa turned its back on that practice at the dawn of our democracy.   

Disclaimer: News24 encourages freedom of speech and the expression of diverse views. The views of columnists published on News24 are therefore their own and do not necessarily represent the views of News24.

Read more on:    local elections 2016

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