Statement: Constitutional court’s Tlokwe-judgment a warning to IEC and political parties
30 November 2015
The Centre for Constitutional Rights (CFCR) welcomes a unanimous judgment by the Constitutional Court in which 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.
In its recent judgment in Kham and Others v Electoral Commission and Another, the Court also declared that, in future, when registering a voter to vote in a particular voting district, the Independent Electoral Commission (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.
The right to vote is fundamental to 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, if elected, to hold office”. The 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. In the Kham-case, however, the Court held that that the by-elections in question were not free and fair because the IEC “fell short of those standards… put in place by legislation and the IEC itself for the conduct of free and fair elections”.