01 Dec Local elections and COVID 19
Local elections and COVID 19
Calls for local government elections to be postponed because of Covid-19 are understandable. However, as such a postponement would require an amendment to the Constitution, it should be considered only as a last resort. Moreover, if it is deemed necessary to postpone the poll, the required constitutional amendment should be narrowly tailored to ensure it does not bestow a general discretion on the president to postpone future elections.
This week, former Deputy Chief Justice Dikgang Moseneke will hear oral submissions on whether South Africa can hold free, safe and fair local government elections on 27 October.
The Electoral Commission of South Africa (IEC) appointed Moseneke to report on whether elections this year should go ahead as planned. Moseneke is also required to compile a report on all the factors that will enable the IEC to hold a free and fair election.
A decision on whether to postpone the election is made more complicated by the fact that section 159 of the Constitution stipulates that the term of a municipal council may be no longer than five years, and that an election must be held within 90 days of the date its term expires. (Section 24 of the Local Government: Municipal Structure Act contains similar provisions.)
As South Africa last held local government elections on 3 August 2016, the term of municipal councils will end at the beginning of November 2021.
While section 159(3) of the Constitution allows municipal councils to exercise their normal functions during this 90-day period, councils will have no legal authority to function after the 90-day period expires. If no elections have taken place by the end of October, municipal councils will no longer have the legal authority to function — unless section 159 of the Constitution is amended to allow for such a postponement.
It is important to note that section 21 of the Electoral Act does allow for the postponement of by-elections if it is “necessary for ensuring a free and fair election”, but makes it clear that this is only permitted if the voting day for the election will still fall within the stipulated period (five years plus 90 days) as required by the Constitution.
This section can therefore not be invoked as legal authority for a postponement of the local government election past the end of October.
The constitutionally entrenched five-year term for municipal councils, as well as for the National Assembly (section 49) and provincial legislatures (section 108), prevent both the IEC and the president from postponing elections past the fixed five-year term. This is important as such a power could easily be abused by an incumbent government to gain an electoral advantage.
It could also be abused by any future anti-democratic government to delay elections when they are deemed inconvenient or likely to lead to a loss of power.
These provisions thus give effect to one of the founding values contained in section 1(d) of the Constitution, namely “universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness”.
Because regular elections are a founding value of our constitutional democracy, it is my view that elections should only ever be postponed past the five-year term in the most exceptional circumstances.
The mere fact that it will be more difficult for political parties to campaign, or for the IEC to conduct free, safe and fair elections, should not, on its own, warrant a postponement.
This does not mean that a postponement would never be warranted. If proceeding with the election would pose a real and substantial risk to the safety of IEC staff and voters, or if it would make a free and fair election entirely impossible, a postponement would have to be considered.
As the Constitutional Court pointed out in Kham and Others v Electoral Commission and Another, whether an election can be characterised as free and fair “must always be assessed in context”. It involves a value judgement, considering all relevant factors, including, I would add, a presumption against the postponement of an election past the five-year term fixed by the Constitution.
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