The right to vote is one of the most basic and fundamental rights in our constitutional democracy. In terms of section 1 of the constitution, “universal adult suffrage, a national common voters’ roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness” is a foundational value of our democracy.
This value is embodied in section 19 which determines that “every citizen has the right to free, fair and regular elections for any legislative body established in terms of the Constitution” and “to vote in elections… and to stand for public office and, of the elected, to hold office”.
In previous findings the Constitutional Court has expressed itself on the importance of this right, not only the importance of the symbolic right to vote, but also the democratic value of this right.
In “August v the Electoral Commission & Others”, the court stated that the vote of each and every citizen is a “badge of dignity and personhood. Quite literally, it says “everybody counts”.
In “Richter v the Minister for Home Affairs & Others”, the court, in reference to the August judgment, held that the right to vote, as well as its exercise, has a constitutional importance in addition to this symbolic value: “ is a crucial working part of our democracy. Without voters who want to vote, who will take the trouble to register, and to stand in queues, as millions patiently and unforgettably did in April 1994, democracy itself will be imperilled”.
In the Richter case the Constitutional Court emphasised the importance of exercising the right to vote in the context of the values and principles of our constitutional democracy: “Each vote strengthens and invigorates our democracy. In marking their ballots, citizens remind those elected that their position is based on the will of the people and will remain subject to that will.”
A responsive, transparent and accountable government therefore, starts with the election of responsive, transparent and accountable representatives who govern by consent.
The Independent Electoral Commission (IEC) must, by virtue of section 190 of the constitution, give effect to these rights by managing elections of national, provincial and municipal legislative bodies in accordance with national legislation and by ensuring that those elections are free and fair.
Accordingly, the importance of the IEC to remain impartial and do their job without fear, favour or prejudice is obvious. For the most part, there has been little reason to doubt the IEC's integrity and credibility. However, recent allegations of apparent bias and worse, against the IEC and its employees in relation to the Tlokwe by-elections are alarming.
Apart from the various media reports, the Electoral Court also expressed itself in the Johnson case on the IEC's failure to register candidates for the Tlokwe by-election. Unfortunately, in the most recent case “Kham and Others v Electoral Commission and Another” the Constitutional Court found that the IEC “fell short of those standards… put in place by legislation and the IEC itself for the conduct of free and fair elections”.
In this latter unanimous judgment, the court set aside the results of a number of by-elections in Tlokwe Local Municipality and ordered fresh by-elections because the elections were not free and fair.
The court also declared that, in future, when registering a voter to vote in a particular voting district, the IEC is obliged to obtain sufficient particularity of the voter’s address to enable it to ensure that the voter is at the time of registration ordinarily resident in that voting district.
The IEC must also in all future municipal elections or by-elections provide all candidates in municipal elections, on the date on which they are certified, with a copy of the segment of the national voters’ roll to be used in that ward in that election, including the addresses of all voters, where these addresses are available.
In the Kham-case, the applicants were unsuccessful candidates in the wards in which they stood for election. Even before the elections, these candidates lodged objections with the IEC concerning voter registrations in their respective wards.
After losing the by-election in September 2013, Mr Kham lodged an objection with the IEC on the same topic, but it was rejected.
In the December by-elections in six wards, the candidates complained of a delay in receiving the segments of the national voters’ roll to be used for the by-elections.
Furthermore, those segments did not include residential addresses for any of the voters, rendering it difficult, if not impossible, for candidates to find, visit and canvass voters.
The candidates then approached the Electoral Court for an order that the December by-elections be postponed and for further relief, but the Electoral Court was unable to convene to hear the application. The by-elections proceeded as scheduled and the six candidates in question lost.
After these by-elections and in response to the present litigation, the IEC conducted its own investigation into the allegations that voters not entitled to registration in these wards had been registered and that their participation had affected the result of the by-elections.
The IEC concluded there had been a number of such registrations and that some of those voters had voted, but in no case had they done so in sufficient numbers to affect the result of the elections.
When the case was finally heard by the Electoral Court, the candidates argued that the IEC’s investigation demonstrated that the by-elections had not been free and fair and they should be set aside and fresh by-elections held. The IEC opposed this and the Electoral Court rejected the candidates' claims, dismissing the application.
But the Constitutional Court found that the IEC failed its own test as it was “non-compliant with its statutory obligation to ensure that voters are registered in the voting district in which they are ordinarily resident in over a quarter of cases over a thirteen-year period”.
According to the court, the IEC also “revealed that, in nearly one-twelfth of new registrations in the affected wards, it did not obtain addresses or information from voters that would enable it to perform this statutory obligation…”.
In this regard and reflecting on a very limited investigation conducted by the IEC in relation to the Tlokwe local municipality, the court noted that between 2000 and 2014, 1040 out of 3832 newly registered voters were registered in the incorrect ward and the addresses of another 332 voters “were so sketchy that it was impossible to say whether they were registered in the correct ward”. The IEC could not explain how these incorrect registrations were made and “proffered no satisfactory explanation for this occurring, seeking instead to shelter behind a contention that it is not obliged to verify voters’ addresses”.
The court stopped short of blaming the IEC for intentionally acting in the manner it had, but did raise serious questions about the IEC’s inability to explain its conduct. Consequently, the court stated that it is expected of the IEC to ensure that the people who are registered as voters and permitted to vote, should be limited to those who are legitimately entitled to vote.
In this regard, the court remarked that the process of voter registration, especially in relation to provincial and local government elections, is particularly vulnerable to manipulation. Accordingly, an election conducted “when there is a serious question as to the reliability of the voters’ roll cannot be described as free and fair”. This is so because “if voters can be brought from outside, into a ward where the political balance is unclear, their votes may influence the outcome of the election at a ward level and even the outcome of an entire municipal election. We cannot shut our eyes to the reality that there are municipalities that are finely balanced electorally, where the result in a single ward may affect the balance of power in the municipality.”
Clearly, the IEC has the ability to actually influence the outcome of elections in a manner that will be wholly unconstitutional and unlawful.
Apart from the IEC's ability to influence the outcome of elections, political parties and their supporters can also have a major influence. Political violence and intimidation remain a concern in South Africa. Such intimidation, whether involving coercion, violence, threats or manipulating fears and anxieties, including threats to economic safety, can have a serious effect on free and fair elections. Hence, apart from its unambiguous criticism of the IEC, the court in the Kham-case also had some warning words for political parties and their supporters: a free and fair election “demands the freedom to canvass; to advertise; and to engage in the activities normal for a person seeking election… Phenomena like ‘no go’ areas; the denial of facilities for the conduct of meetings; disruption of meetings; the destruction of advertising material or the intimidation of candidates, workers or supporters, could all prevent an election from being categorised as free and fair.”
Given the upcoming local government elections, certain political parties and their supporters may want to take note of this warning.
Nevertheless, the Constitutional Court, as guardian of the constitution and our constitutional democracy and on behalf of the people of South Africa, in no uncertain terms issued a stern warning to the IEC and political parties alike: “Electoral legitimacy and the integrity of the electoral process are of enormous importance in South Africa.” As such, the IEC, as an institution supporting constitutional democracy in terms of Chapter 9 of the Constitution, must be held to the highest standards imposed by the constitution. Its integrity and impartiality must be guarded at all costs.
Once the IEC is perceived to be biased, whether because of the commissioners appointed to serve on the IEC, their conduct, or because of conduct such as that seen in the Kham-case, the citizens of South Africa will lose faith – not only in the integrity of the IEC, but also in the democracy which this institution is supposed to be serving.
Advocate Johan Kruger is director of the Centre for Constitutional Rights
IEC status anchors democracy
This value is embodied in section 19 which determines that “every citizen has the right to free, fair and regular elections for any legislative body established in terms of the Constitution” and “to vote in elections… and to stand for public office and, of the elected, to hold office”.
In previous findings the Constitutional Court has expressed itself on the importance of this right, not only the importance of the symbolic right to vote, but also the democratic value of this right.
In “August v the Electoral Commission & Others”, the court stated that the vote of each and every citizen is a “badge of dignity and personhood. Quite literally, it says “everybody counts”.
In “Richter v the Minister for Home Affairs & Others”, the court, in reference to the August judgment, held that the right to vote, as well as its exercise, has a constitutional importance in addition to this symbolic value: “ is a crucial working part of our democracy. Without voters who want to vote, who will take the trouble to register, and to stand in queues, as millions patiently and unforgettably did in April 1994, democracy itself will be imperilled”.
In the Richter case the Constitutional Court emphasised the importance of exercising the right to vote in the context of the values and principles of our constitutional democracy: “Each vote strengthens and invigorates our democracy. In marking their ballots, citizens remind those elected that their position is based on the will of the people and will remain subject to that will.”
A responsive, transparent and accountable government therefore, starts with the election of responsive, transparent and accountable representatives who govern by consent.
The Independent Electoral Commission (IEC) must, by virtue of section 190 of the constitution, give effect to these rights by managing elections of national, provincial and municipal legislative bodies in accordance with national legislation and by ensuring that those elections are free and fair.
Accordingly, the importance of the IEC to remain impartial and do their job without fear, favour or prejudice is obvious. For the most part, there has been little reason to doubt the IEC's integrity and credibility. However, recent allegations of apparent bias and worse, against the IEC and its employees in relation to the Tlokwe by-elections are alarming.
Apart from the various media reports, the Electoral Court also expressed itself in the Johnson case on the IEC's failure to register candidates for the Tlokwe by-election. Unfortunately, in the most recent case “Kham and Others v Electoral Commission and Another” the Constitutional Court found that the IEC “fell short of those standards… put in place by legislation and the IEC itself for the conduct of free and fair elections”.
In this latter unanimous judgment, the court set aside the results of a number of by-elections in Tlokwe Local Municipality and ordered fresh by-elections because the elections were not free and fair.
The court also declared that, in future, when registering a voter to vote in a particular voting district, the IEC is obliged to obtain sufficient particularity of the voter’s address to enable it to ensure that the voter is at the time of registration ordinarily resident in that voting district.
The IEC must also in all future municipal elections or by-elections provide all candidates in municipal elections, on the date on which they are certified, with a copy of the segment of the national voters’ roll to be used in that ward in that election, including the addresses of all voters, where these addresses are available.
In the Kham-case, the applicants were unsuccessful candidates in the wards in which they stood for election. Even before the elections, these candidates lodged objections with the IEC concerning voter registrations in their respective wards.
After losing the by-election in September 2013, Mr Kham lodged an objection with the IEC on the same topic, but it was rejected.
In the December by-elections in six wards, the candidates complained of a delay in receiving the segments of the national voters’ roll to be used for the by-elections.
Furthermore, those segments did not include residential addresses for any of the voters, rendering it difficult, if not impossible, for candidates to find, visit and canvass voters.
The candidates then approached the Electoral Court for an order that the December by-elections be postponed and for further relief, but the Electoral Court was unable to convene to hear the application. The by-elections proceeded as scheduled and the six candidates in question lost.
After these by-elections and in response to the present litigation, the IEC conducted its own investigation into the allegations that voters not entitled to registration in these wards had been registered and that their participation had affected the result of the by-elections.
The IEC concluded there had been a number of such registrations and that some of those voters had voted, but in no case had they done so in sufficient numbers to affect the result of the elections.
When the case was finally heard by the Electoral Court, the candidates argued that the IEC’s investigation demonstrated that the by-elections had not been free and fair and they should be set aside and fresh by-elections held. The IEC opposed this and the Electoral Court rejected the candidates' claims, dismissing the application.
But the Constitutional Court found that the IEC failed its own test as it was “non-compliant with its statutory obligation to ensure that voters are registered in the voting district in which they are ordinarily resident in over a quarter of cases over a thirteen-year period”.
According to the court, the IEC also “revealed that, in nearly one-twelfth of new registrations in the affected wards, it did not obtain addresses or information from voters that would enable it to perform this statutory obligation…”.
In this regard and reflecting on a very limited investigation conducted by the IEC in relation to the Tlokwe local municipality, the court noted that between 2000 and 2014, 1040 out of 3832 newly registered voters were registered in the incorrect ward and the addresses of another 332 voters “were so sketchy that it was impossible to say whether they were registered in the correct ward”. The IEC could not explain how these incorrect registrations were made and “proffered no satisfactory explanation for this occurring, seeking instead to shelter behind a contention that it is not obliged to verify voters’ addresses”.
The court stopped short of blaming the IEC for intentionally acting in the manner it had, but did raise serious questions about the IEC’s inability to explain its conduct. Consequently, the court stated that it is expected of the IEC to ensure that the people who are registered as voters and permitted to vote, should be limited to those who are legitimately entitled to vote.
In this regard, the court remarked that the process of voter registration, especially in relation to provincial and local government elections, is particularly vulnerable to manipulation. Accordingly, an election conducted “when there is a serious question as to the reliability of the voters’ roll cannot be described as free and fair”. This is so because “if voters can be brought from outside, into a ward where the political balance is unclear, their votes may influence the outcome of the election at a ward level and even the outcome of an entire municipal election. We cannot shut our eyes to the reality that there are municipalities that are finely balanced electorally, where the result in a single ward may affect the balance of power in the municipality.”
Clearly, the IEC has the ability to actually influence the outcome of elections in a manner that will be wholly unconstitutional and unlawful.
Apart from the IEC's ability to influence the outcome of elections, political parties and their supporters can also have a major influence. Political violence and intimidation remain a concern in South Africa. Such intimidation, whether involving coercion, violence, threats or manipulating fears and anxieties, including threats to economic safety, can have a serious effect on free and fair elections. Hence, apart from its unambiguous criticism of the IEC, the court in the Kham-case also had some warning words for political parties and their supporters: a free and fair election “demands the freedom to canvass; to advertise; and to engage in the activities normal for a person seeking election… Phenomena like ‘no go’ areas; the denial of facilities for the conduct of meetings; disruption of meetings; the destruction of advertising material or the intimidation of candidates, workers or supporters, could all prevent an election from being categorised as free and fair.”
Given the upcoming local government elections, certain political parties and their supporters may want to take note of this warning.
Nevertheless, the Constitutional Court, as guardian of the constitution and our constitutional democracy and on behalf of the people of South Africa, in no uncertain terms issued a stern warning to the IEC and political parties alike: “Electoral legitimacy and the integrity of the electoral process are of enormous importance in South Africa.” As such, the IEC, as an institution supporting constitutional democracy in terms of Chapter 9 of the Constitution, must be held to the highest standards imposed by the constitution. Its integrity and impartiality must be guarded at all costs.
Once the IEC is perceived to be biased, whether because of the commissioners appointed to serve on the IEC, their conduct, or because of conduct such as that seen in the Kham-case, the citizens of South Africa will lose faith – not only in the integrity of the IEC, but also in the democracy which this institution is supposed to be serving.
Advocate Johan Kruger is director of the Centre for Constitutional Rights
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