IEC forestalls court and democracy – IRR

The Electoral Commission (IEC) has confirmed that it has yet to approach any court for permission to delay municipal elections constitutionally mandated for 27 October despite the urging of its own July 20 report (the “Moseneke Report”) that it “must approach” a court “with deliberate speed” to resolve the problem.

The IEC’s lawyers have informed the Institute of Race Relations (IRR) that the commission “anticipates” filing this appeal to the Constitutional Court by August 6.

This has significant implications for the democratic process in South Africa.

The IEC knows how to approach a court swiftly. After the President first proclaimed a state of disaster in March 2020 the IEC made its first court appeal to postpone by-elections within two days. South Africans should ask themselves why the IEC’s court appeal has not been speedily forthcoming this time, and what the implications of its delay may be.

While the IEC forestalls its court appeal it has not hesitated to lodge a spanner in the wheel on which democracy depends to roll forward in a constitutional manner. The IEC has done so by postponing in-person voter registration to an undetermined date.

It is worth recalling that the IEC must conclude voter registration before the election date can be proclaimed, and that a significant lead time is required between proclamation and election so that preparations can be executed. The IEC refers to the period between proclamation and election as the “election timetable”.

When asked what the minimum practical election timetable may be, Mlungisi Kelembe, an IEC project manager, said “86 days”. This contradicts the “Moseneke Report”, which “confidently” stated that “reducing the election timetable from 86 days to 82 days” is possible.

When asked for further details, the IRR was directed to IEC lawyers who indicated that the minimum election timetable would be disclosed only “after” its court appeal was filed, and that the IEC “anticipates” filing this appeal to the Constitutional Court by August 6.

But an August 6 appeal mocks the court appeal process. Working on an 82-day election timetable, August 11 is the last day on which a proclamation can be made consistent with national municipal elections taking place before the constitutionally mandated deadline. In other words, the IEC’s forestalled appeal will take place after the matter should already have been decided.

IRR lawyers have asked the IEC whether it intends to effectively break the constitutional deadline first and ask permission later. If the IEC is unable to truncate its election timetable it must face the charge of subverting the process of justice, acting in dereliction of its duty, and undermining democracy.

The stakes are stupefying. Should the IEC delay elections as it plans to, an estimated 80 000 eligible voters will die before being allowed to vote. Their vote will be robbed irrevocably, and no one knows who stands in that number.

Moreover, an explicit deadline in Section 159 (2) of the Constitution would have been broken on the basis that “greater immunity through mass vaccination” comes before elections, though polling by Afrobarometer indicates that 50% of South Africans are vaccine-hesitant. The “Moseneke Report” never mentions vaccine hesitancy, and South Africa will never vote if we have to wait for “a certain level of community immunity” as the report requires.

Said Gabriel Crouse, IRR head of campaigns: “A doctor may not take a patient off life support and then wait two weeks before asking a court for permission. Likewise, the IEC may not delay its court appeal until the constitutional deadline is already broken by its timetable, and then ask permission to do so. Yet it is doing just that. This is a brazen dereliction of duty and an insult to the Constitutional Court to which the IEC says it will appeal.”

Added Crouse: “The most notorious US Secretary of State was once caught on a hot-mic saying, ‘The illegal we do immediately, the unconstitutional takes a little longer’. Henry Kissinger’s theory of how best to accomplish auto-coups and ‘counter-insurgence’ has tragically become IEC practice.”

Statement issued by Gabriel Crouse, IRR Head of Campaigns, 30 July 2021