Can we have confidence in a free and fair 2016 election?

11 August 2014

Last Sunday, the campaign for this week's 19 by-elections countrywide, took me to Port Elizabeth's marginal Ward 40. I was to address a crowd of DA activists, and for this we reserved the local Kuyga Community Hall.

If there's one thing the DA understands very well, it's the logistics of election campaigning. So we booked this hall well in advance following the proper procedure, paid a deposit and got our confirmation, as well as a receipt.

However, on arrival at the venue we found that it was already occupied. The local ANC branch - and a relatively small number of them - had decided to use the hall for an "all-day concert" and refused to leave. 

They claimed to have a standing booking for the exclusive use of the community hall for the entire run-up to the by-elections, but could not provide a receipt.  They claimed to have booked it "through the Mayor's office" although no such booking procedure exists.

The municipality confirmed ours was the only booking, and the SAPS went to inform the occupiers of this, but still they refused to leave. The SAPS officers merely shrugged and declined to intervene further.

Rather than start a bruising battle (despite our superiority of numbers) we chose instead to hold our event outside while the ANC's impromptu party continued inside the hall. 

This incident was no administrative bungle, or even just petulance on the part of local ANC members. 

To fully understand the broader context of what seems like a relatively minor episode, you have to take two things into account: the results of Election 2014 in the Nelson Mandela Bay Metro, and the upcoming Local Government Elections in 2016.

While the ANC likes to remind everyone that it won 62% of the national vote in May this year, it doesn't like to dwell on the voting outcome in the metros, where the results paint a far more intriguing picture. Suddenly, after May, four more metros - in addition to Cape Town - are in play for 2016.

In Gauteng, the ANC is looking extremely vulnerable in the province's three metros: Johannesburg (52.3%), Tshwane (49.3%) and Ekurhuleni (55%). A DA victory in even one of these metros in 2016 would be the tipping point for the province. 

This would also enable the people of Gauteng to compare service delivery in DA and ANC metros side by side. And when it comes to service delivery at local level, there is no place to hide.

But it is in Nelson Mandela Metro (centred on Port Elizabeth) where the realisation really hit home for the ruling party. This closely contested city, in an otherwise ANC dominated Eastern Cape, saw the ANC drop to 48.8%  Only eight percentage points now separate the ANC and the DA here. 

What happened in 2006 in the City of Cape Town (when a DA-led coalition toppled the ruling ANC) looks increasingly possible in Nelson Mandela Bay in 2016.

We may be two years away, but make no mistake, campaigning for Election 2016 is well underway. 

The refusal to give up the hall in Kuyga might seem like a minor issue, but taken together with scores of other seemingly "minor" issues, a sinister picture emerges.  

The ANC, and the institutions of state it has "captured", are determined to prevent any further losses through the ballot box, and to reverse the tide of the party's declining support.  They are increasingly prepared to subvert our democracy to ensure this.

We have already had many warning signals.

Think about Midvaal, the only DA-run municipality in Gauteng.  The "deployed cadres" in the Municipal Demarcation Board are determined to merge Midvaal with surrounding ANC-dominated municipalities in an attempt to erase the DA majority. 

Think about the deployment of the South African Democratic Teachers Union (SADTU) as electoral officers to run the polling stations -- after SADTU instructed its members to do everything possible to ensure the re-election of the ANC.

And now the Independent Electoral Commission itself -- once one of our most robust independent state institutions -- is under serious threat of becoming another ANC lapdog, following in the footsteps of the National Prosecuting Authority and the SABC.

When everything else is stripped away, we believe that this is what the current battle for control of the IEC is all about.  It goes without saying that if the IEC becomes an extension of the ruling faction of the ANC, we can kiss free and fair elections goodbye.

Of course this trend is likely to be disguised as something else:  certain voting stations will "run out" of ballot papers.  Certain "Zip zip" machines will be defective.  Certain polling stations will open late, so that people get tired of waiting in queues and leave.  There will be targeted electricity "black outs".  

This trend was already evident at some Cape Town polling stations during this year's election.  When it happens in marginal wards in a local election it can alter the outcome.  And when this happens in strong DA-supporting wards, it can alter the overall proportionality of the result.  

The occupation of the Kuyga hall must be seen in this context.  Every "check and balance" in the system failed us.  When we complained to the IEC, their answer was: go to the electoral court (which will only be able to adjudicate the matter well after the by-election is over).

But even then, I now have to ask:  can we have confidence in the electoral court? 

I ask this question in the context of recent developments in another municipality -- Tlokwe (Potchefstroom) in the North West.  

Here a faction of the warring ANC contested last year's by-elections as independents.  The independents appealed successfully to the Electoral Court for the postponement of the by-elections after IEC officials showed open bias against them by refusing them access to the voters roll.

But when the independents approached the Electoral Court for a second time, alleging that the ANC had fraudulently registered approximately 1,800 non-resident ANC supporters in the contested wards, the electoral court postponed the case so that the IEC could undertake an "audit".  

The IEC now claims that, since 2002, there have "only" been 1,000 irregular registrations in the relevant wards, and that this would not have changed the outcome of the elections.

Is the IEC therefore implying that having "only" 1000 irregular registrations is acceptable?  And is the Electoral Court going to accept an audit, conducted by the IEC, that was shown in a previous matter in the same town to have been clearly biased against the independent candidates, in favour of the ANC?

We do not know the answers to these questions yet, because the case is ongoing.  But they are moot anyway, because it is now nine months since the elections took place.  The ANC won and is now back in control of Tlokwe.

If this is the system we have to rely on to guarantee free and fair elections in 2016, it is no comfort at all.

And even if we do happen to win new municipalities in 2016, will the ANC give up power?

This is not a far-fetched question.

The DA is currently locked in a court battle to force the ANC to relinquish power in the Oudtshoorn municipality, after the ANC lost its majority in by-elections in August last year.

One year later, they are still refusing to hand over power, and are spending ratepayers' money hand-over-fist in filibustering court cases to stay in control. Recent reports allege that R16 million have now been removed from the Cango Caves trust account into the municipality's coffers as the ANC bleeds the town dry.

The extent of the abuse was reflected in two court judgements in which the Judge ordered the Speaker of Oudtshoorn to personally pay the costs of court cases, after he refused to convene council meetings to avoid a motion of no confidence against the ANC.  

Since then, undaunted, the ANC has resorted to suspending DA councillors on the flimsiest of pretexts so that the ANC can cling onto its majority in the council.

The ANC in Oudtshoorn is playing for time till the 2016 election and, already, multiple strategies are underway to ensure that they win again, by hook or by crook (normally the latter).  

If fraudulent registrations happened in Tlokwe, they are almost certain to be a feature of registrations in Oudtshoorn and many other marginal municipalities in the run-up to 2016.

And what is the IEC doing about this?

Their stock answer is:  Go to the Electoral Court.

We believe this is ducking the issue.  

According to the Constitution, the IEC's mandate is to "manage elections" and "ensure that those elections are free and fair".  

Elections cannot be free and fair if the ANC abuses its power. It is the IEC's job to ensure that they do not.  

This means ensuring free and fair registrations.  It means protecting voters from intimidation.  It means preventing the ruling party from abusing state resources for its election campaign.  It means ensuring that the SABC is unbiased.  It means ensuring non-aligned electoral officials who will reliably oversee the election.  And it requires the muscle to stop a host of seemingly minor infringements such as the illegal "occupation" of community halls.

For the first time in 2016, these issues are going to be "make-or-break" for the election outcome.  And it is crucial now for us to apply our minds, and develop our systems, to ensure that we can still say South African elections are substantially free and fair.

Given the current trajectory, I doubt it will be possible to rely on the IEC alone to do so.

This article by Helen Zille first appeared in SA Today, the online newsletter of the leader of the Democratic Alliance.

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