Johannesburg – Initially it struck me that the DA is right to insist that the Constitutional Court could not have meant for the Independent Electoral Commission (IEC) to give incompetent political parties a second bite at the cherry.
If you had missed the deadline for submitting your list of candidates to contest the local government elections, then tough luck.
But I was wrong.
Having read all of the legal papers in the battle between the DA and the IEC on how to interpret the court’s order that the IEC cannot postpone elections, I’m now of the view that the court didn’t aim to preclude the IEC from making a judgement call of its own about what needs to happen to ensure free and fair elections.
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The fact that the DA is unhappy about what the IEC decided doesn’t mean that the IEC acted unlawfully.
Section 11(2) of the Local Government: Municipal Electoral Act 27 of 2000 empowers the IEC to amend the elections timetable if it deems doing so “necessary” to ensure free and fair elections.
This means the IEC can do what it has now in fact done by invoking this statutory source of legal power.
It would be most peculiar to impute to the Constitutional Court the intention to tie the hands of the IEC and stop it from making expert administrative decisions about the very reason for its existence, which is to run elections fairly.
What is very revealing is that nowhere in the legal papers of the DA does the party explain why, in law, the IEC’s decision is irrational and unreasonable.
Quite oddly, the DA dares to claim it does not need to discharge this burden.
That is an error, if not in law, then certainly strategically so. The DA won’t succeed in the claim that the IEC’s decision to reopen the candidates nomination process fails the principle of legality.
For one, the court’s initial order that elections cannot be postponed does not restrict the IEC in the manner the DA asserts without compelling argument.
For another, the IEC’s decision is anchored in both the constitution itself as well as the Electoral Act. That is why it was crucial for the DA to demonstrate irrationality and unreasonableness.
We all know why it couldn’t do so really.
That is because the DA, in fact, is not harmed nor disadvantaged by the decision that the IEC took.
All political parties benefit including the DA, who can now correct some errors that it also committed during the course of the submission.
The court should wholly focus on giving maximum effect to our fundamental rights. Section 19 of our constitution doesn’t only affirm and preserve the right to vote.
It also includes a cluster of inherently related rights linked to participation in political activity and standing for political office.
A narrow interpretation of the initial court order would, in effect, amount to thwarting our full enjoyment of the basket of political rights that are fundamental to the democratic process.
And that is why the DA case is one that is disrespectful of voters.
We should be the ones who reject political parties and independent candidates that we deem to be useless.
The DA wants to gain political power at all costs, even if it includes undercutting voter authority.
That is not what anyone committed to democracy should do.
They should win the argument, win the hearts and minds of voters and not score electoral victories on a huge scale just because of technicalities that matter, yes, but that shouldn’t be mechanically implemented without regard for democratic principles.
Besides, if the DA still feels like the elections were not free and fair in November, they will have legal avenues available to challenge the result still.
But doing so pre-emptively is neither legally nor politically sound.
Rather, the DA should get on with the business of campaigning. They should trust voters rather than condescend to us.
- McKaiser is a political analyst, broadcaster and author.
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