Electoral Commission appoints former Deputy Chief Justice Dikgang Moseneke to evaluate conditions conducive to free and fair elections

Published: May 20, 2021

The Electoral Commission has appointed former Deputy Chief Justice Dikgang Moseneke to lead a process to evaluate the impact of Covid-19 on conditions conducive for the holding of free and fair elections later this year. 

Justice Moseneke will undertake an urgent appraisal of all the relevant legal, socio-political, health, practical and other considerations and submit a report to the Commission during July. In addition to assessing the various factors, the report may also make recommendations of additional measures to further fortify the integrity and safety of the elections.

The request to Justice Moseneke is in line with Section 14(4) of the Electoral Commission Act (51 of 1996) which provides for the Commission, should it deem necessary, to publish a report on the likelihood or otherwise that it will be able to ensure that any pending elections will be free and fair.

The Commission considered it prudent to commission this process, following a series of engagements between the Commission and the leaders of political parties represented in the National Political Party Liaison Committee over recent weeks. During these consultations, it emerged that some political parties were concerned that with the trajectory of the pandemic and the holding of elections under those conditions.

This initiative will take into account the work already undertaken by the Commission in engaging with key stakeholders and the development and testing during by-elections of COVID mitigation measures.

“Preparations to host the Local Government Elections are at an advanced stage and the Commission is satisfied that it is possible to conduct successful elections within the current circumstances,” said Commission Chairperson Mr Glen Mashinini.

“The Commission is also confident that the special COVID-19 protocols and measures to be put in place for the elections will provide adequate safeguards. These measures have been tested in over 150 by-elections conducted over the past six months. 

The measures also take into consideration the experiences of a number of other countries in conducting elections successfully during the pandemic. 

“The Commission is not oblivious to the uncertainties and unpredictability of the pandemic and the risks associated with hosting events which bring together large numbers of people. We also understand that these circumstances will require political parties and candidates to adjust their traditional campaign strategies. 

“Under such abnormal conditions, the minimum requirements for what constitute free and fair conditions may be different from the standards we apply to during ordinary times,” he said

For these reasons Mr Mashinini said the Commission had decided to activate the Section 14(4) process to provide additional insights and further possible mitigation measures to safeguard the integrity of the elections.

“The Commission is acutely aware of the weight of its responsibility find the correct balance between protecting our Constitutional democracy and protecting people’s lives. Under the current unprecedented circumstances, we should not shy away from using every tool at our disposal to make sure we meet these obligations.”

Along with his extensive experience in the Constitutional Court, Justice Moseneke is the former Deputy Chairperson of the Independent Electoral Commission which conducted the first democratic elections in South Africa in 1994. 

“This gives him valuable insight and experience in the intricacies of conducting elections,” Mr Mashinini said. “Having a person of the calibre, reputation, experience and unquestionable integrity of Justice Moseneke to provide an independent review and analysis can only serve to enhance the decision-making of the Commission.” 

As part of the process, Justice Moseneke will invite and consider submissions from various stakeholders including:

• political parties
• key electoral stakeholders including the administration of the Electoral Commission
• health authorities, in particular relating to the anticipated trajectory of the pandemic as well as efforts to manage, mitigate and reach community immunity through vaccinations and other initiatives
• the disaster management authorities including the Department of Cooperative Government and Traditional Affairs and other relevant government structures
• stakeholders functioning in the constitution and electoral democracy environment.

While this process is underway, the Electoral Commission will continue with all its preparations to hold the elections on 27 October 2021 as announced by President Cyril Ramaphosa.

The formal proclamation of the elections by the Minister of Cooperative Governance and Traditional Affairs Dr Nkosazana Dlamini-Zuma, which triggers a series of electoral processes in terms of the law, must still take place by early August.

Statement by Chairperson of the Electoral Commission Glen Mashinini  (see below)

Statement by Justice Dikgang Moseneke on accepting Electoral Commission's request to evaluate conditions conducive to free and fair elections (see below)

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Statement by Electoral Commission Chairperson Mr Glen Mashinini on the appointment of Justice Dikgang Moseneke to evaluate conditions conducive to free and fair elections

20 May 2021

Centurion – The Commission is pleased to announce that it has appointed former Deputy Chief Justice Dikgang Moseneke to lead a process to review whether the current conditions are conducive or not to the holding of free and fair elections later this year.

Through this process Justice Moseneke will undertake an urgent review of all the relevant factors which have a bearing on the holding of free, fair and safe elections in October.

These include the legal, socio-political, health, practical and any other relevant considerations.

The process will culminate in the submission of a report to the Commission during July to assist the Commission in evaluating all factors bearing influence on the possibility of free and fair 2021 Local Government Elections.

In addition to assessing the various factors, the report may also make recommendations of additional initiatives and measures to further fortify the credibility and safety of the elections.

The request to Justice Moseneke is in line with Section 14(4) of the Electoral Commission Act (51 of 1996):

The Commission may, if it deems it necessary, publish a report on the likelihood or otherwise that it will be able to ensure that any pending elections will be free and fair.

This legal process forms part of on-going engagements between the Commission and the leaders of political parties under the auspices of the National Political Party Liaison Committee.

The Commission has been engaging with political parties through the NPLC over the past two years as part of its preparations for Local Government Elections 2021.

More recently it has emerged that the various political parties are divided on whether the upcoming Local Government Elections can be free and fair within the context of the on-going COVID-19 pandemic.

While the majority of political parties believe that elections should proceed under the extant Constitutional provisions, some parties have raised concerns that restrictions on campaigning imposed by the national disaster regulations could undermine the freeness and fairness of the elections.

Preparations to host the Local Government Elections are at an advanced stage and the Commission is satisfied that it is possible to conduct successful elections within the current circumstances.

The Commission is also confident that the special COVID-19 protocols and measures to be put in place for the elections will provide adequate safeguards. These measures have been tested in over 150 by-elections conducted over the past six months.

Yesterday 40 by-elections were successfully conducted in 251 voting stations across six provinces involving more than 360 000 registered voters.

The measures also take into consideration the experiences of a number of other countries in conducting elections successfully during the pandemic.

These include (among others) elections conducted in South Korea, India, Kenya, Indonesia, Malawi and most recently the local government elections in the United Kingdom.

Despite the Commission’s confidence, we are not oblivious to the uncertainties and unpredictability of the pandemic and the risks associated with hosting events which bring together large numbers of people.

We also understand that these circumstances will require political parties and candidates to adjust their traditional campaign strategies.

Under such abnormal conditions, the minimum requirements for what constitute free and fair conditions may be different from the standards we apply to during ordinary times.

The Commission wishes to benefit from an independent evaluation of all factors which have a bearing on the possibility or otherwise of a free and fair elections.

The Section 14(4) process allows us to go the extra mile as part of our Constitutional obligations to ensure free and fair elections.

We are all by now aware of the Constitutional constraints and the announcement by the Honourable President His Excellency Mr Cyril Ramaphosa that the elections are earmarked for 27 October 2021.

Among the most important milestones in the preparation for elections is the formal proclamation of the elections by the Minister of Cooperative Governance and Traditional Affairs Dr Nkosazana Dlamini-Zuma.

This triggers a series of electoral processes in terms of the law including the closing of the voters’ roll and the opening of candidate nominations.

This proclamation must take place by early August in order to allow a minimum of 86 days for the Commission to undertake all its obligations in terms of the elections timetable.

In order to allow the Commission to benefit from the report it needs to be submitted by mid-July at the latest.

As part of the process, Justice Moseneke will consider submissions from various stakeholders including from:

- political parties represented within the National Political Party Liaison Committee;

- key electoral stakeholders including the administration of the Electoral Commission;

- the disaster management authorities including the Department of Cooperative Government and Traditional Affairs and other relevant government structures.

The Commission is extremely grateful to Justice Moseneke for agreeing to lead this process under these extremely tight timelines.

Along with his extensive experience on the Constitutional Court and as Deputy Chief Justice, Justice Moseneke is also the former Deputy Chairperson of the Independent Electoral Commission which conducted the first democratic elections in South Africa in 1994.

This gives him valuable insight and experience in the intricacies of conducting elections.

The Commission will provide support to Justice Moseneke necessary to carry out this work.

The Commission is acutely aware of the weight of its responsibility to find the correct balance between protecting our Constitutional democracy and protecting people’s lives.

Under the current unprecedented circumstances, we should not shy away from using every tool at our disposal to make sure we meet these obligations.

Having a person of the calibre, reputation, experience and unquestionable integrity of Justice Moseneke to provide an independent review and analysis can only serve to enhance the decision-making of the Commission.

The Commission appeals to all political parties to assist Justice Moseneke in meeting the deliverables within the time constraints available.

ENDS

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Statement by Justice Dikgang Moseneke on accepting Electoral Commission request to evaluate conditions conducive to free and fair elections

20 May 2021

Centurion – It is with a keen sense of duty to support electoral democracy in South Africa that I have accepted the invitation from the Electoral Commission of South Africa to lead a process to review whether the current conditions are conducive or not to the holding of free and fair elections later this year.

Our Constitution provides clear guidance on a number of elements relating to our electoral democracy. These include:

1. In Chapter 1, Section 1 of the Founding Provisions provides for South Africa a system of universal adult suffrage, a national common voters’ roll, regular elections and a multi-party system of government to ensure accountability, responsiveness and openness

2. Under Section 19 (Political Rights) it provides that every citizen has the right to free, fair and regular elections for any legislative body established in terms of the Constitution.

3. The Constitution in Section 159 is also clear on a limitation of five years for the term of office municipal councils and provides for a new election to be held within 90 days of the expiry of that term.

4. Finally, the Constitution in Chapter 9 establishes and mandates the Electoral Commission to manage those elections and ensure they are free and fair.

Over the past 27 years since our first democratic elections we have seen our democracy mature and thrive through six National and provincial Elections and four Local Government Elections.

But today, as we prepare for our fifth Local Government Elections, our democracy and indeed all democracies around the world face an unprecedented threat from the COVID-19 pandemic.

The pandemic has affected almost every country, every person and every aspect of our lives over the past 16 months. Electoral democracy has not been spared. Almost 80 countries and territories have postponed elections over the past 18 months due to concerns over the pandemic while a further 118 countries opted to proceed with elections.

The responses of democracies around the world show that there is no right or wrong approach to this quandary. Nor can any decision be made in isolation from the particular circumstances and conditions prevalent within that country.

While our Constitution is silent on how exactly we should deal with such unforeseen circumstances it does provide overall guidance: that all elections must be free and fair. As such, the key consideration cannot only be whether the elections meet the timing prescripts but also whether they meet the prescripts of freeness and fairness.

Section 14(4) of the Electoral Commission Act (51 of 1996) provides a possibility wherein the Commission may publish a report on the likelihood or otherwise that it will be able to ensure any pending election will be free and fair.

When I was called upon by the Electoral Commission to take up this extraordinary assignment I could not ignore the importance of this undertaking within the context of our on-going journey to entrench and strengthen democracy in our country.

This is the first time in the history of our nascent democracy that we have faced such extraordinary circumstances. How we respond to these as a country will have far- reaching consequences for our democracy and for our people.

As one of the drafters of our Constitution and as one of the founder members of the Independent Electoral Commission in 1994, I am honoured to accept this project of national significance.

I am cognizant of the very short timeframes available due to the pressures exerted by the timeframe provided by the Constitution and electoral laws to conduct the Local Government Elections.