Alert 157 – South Africa – Municipal elections to go ahead amid some controversy

South Africa’s Independent Electoral Commission (IEC) announced on 6 September that it would be able to hold the local government elections (LGE) between 27 October and 1 November in compliance with the 3 September Constitutional Court order. The country’s highest court dismissed the IEC’s application to have the elections delayed due to the challenges to holding free and fair elections caused by the Covid-19 pandemic and related lockdowns. The Court did, however, grant the IEC the ability to shift the election as late as 1 November from the originally gazetted date of 27 October. The new election date is expected to be proclaimed on 20 September. These extra four days were granted so that the IEC would be able to organise a voter registration weekend, which will take place on 18 and 19 September.

The Court ruling is an important constitutional milestone for the country and essentially enshrines the fact that the constitution does not allow for the delay or suspension of elections. Going forward this will compel the IEC to adapt to any external and unforeseen challenges rather than seek delays. This ruling strengthens the fundamental right to the vote as once a precedent is set to delay elections for a good reason it can be used to justify more cynical electoral delays in future.

Undoubtedly the biggest beneficiary of the Constitutional Court’s ruling was the ruling African National Congress (ANC). The ANC had failed to meet the IEC’s deadline to register all of its electoral candidates for the upcoming election. As a result, in at least 93 municipalities the ANC does not have a full electoral contingent, this includes both candidates on the party’s proportional representation (PR) lists and ward councillors. South Africa’s local government elections are a mixed system where half of a municipality’s councillors are selected via proportional representation and half directly elected by their constituencies.

However, the IEC announced that as part of rebooting the electoral process by re-proclaiming the election date, candidate registrations would also be reopened. This is a massive saving grace for the ruling party as the ANC was set to lose control of as many as 42 local and district municipalities, including in party strongholds such as Greater Giyani in Limpopo where the party won the 2016 municipal election with almost 80% of the vote. This would have had a transformative effect on the country’s political landscape as it would have resulted in a change of governance in these areas, potentially weakening the ANC’s long-term support. The absence of the ANC on the ballot would also have revealed the true second-choice party for voters and potentially even bolstered independent and community-organisation based candidates. However, this likely also would have had a destabilising effect as these new governments would not enjoy the support of the overwhelming majority of residents. This would likely have fuelled a surge in electoral violence.

It is hard to overstate how big a bungle this was for the ANC. Had the IEC’s initial decision stood, and the party been precluded from resubmitting candidates, hundreds of ANC members would have been rendered unemployed. Given that this is the difference between poverty and a middle-class lifestyle for many local councillors, this would have fuelled anger and resentment within the party and likely led to significant upheaval within the ANC itself.

Opposition parties, including the official opposition – the Democratic Alliance (DA) and the Economic Freedom Fighters (EFF) – have already announced that they will take the IEC to court to oppose the reopening of the candidate registration. These parties argue that the decision unfairly benefits the ANC and oversteps the Constitutional Court’s ruling requiring only that the voter’s roll be reopened.

However, although this is evidently true, the IEC’s decision is rooted in the fact that once the proclaimed election date was declared null and void, the commission had to restart the entire process meaning that if a new date is declared and the voters’ roll reopened, candidate registration must also be reopened. This is further supported by the fact that any registered voter has the right to stand as their local ward councillor, which means someone has the ability to register as a voter for an election they must accordingly be granted the right to register as a ward councillor. As such, the best the opposition can hope for is that PR registration remains closed. This would still have a resounding impact on the electoral landscape.

It should also be noted that the ANC is not the only beneficiary of the decision, several smaller parties, including the United Democratic Movement (UDM), also failed to register a full electoral contingent and welcomed the opportunity to rectify this.

This has all set the stage for a very contentious election. Should the opposition parties fail in their efforts to prevent the candidates’ roll from being reopened, they will likely accuse the IEC and the Constitutional Court of being captured and biased towards the ANC. The DA has already begun this, with its Federal Council Chairperson Helen Zille already attacking the judiciary and IEC as being in league with the ruling party. This is exceptionally dangerous as it seeks to undermine the public’s faith in the judiciary and in the election itself. Similarly, should the ANC be prevented from resubmitting its candidates, it will seek to shift the blame from its own leaders onto the IEC and the Court. Either way, these vital democratic institutions will be under exceptional pressure over the coming weeks.

Further, given the limited time to prepare for the election combined with the additional challenges presented by the Covid-19 pandemic, the IEC will struggle to pull off the election to its usual standards. There is an elevated possibility that the election could be marred by mishaps and delays caused by this hasty planning. This will be exacerbated by low voter turnout and a lack of adequate public polling. As such, the election is expected to be contentious and potentially could even witness an overt challenge to some of the results. The DA and EFF’s criticisms of the IEC are already laying the groundwork for a potential challenge should these parties perform poorly. This would increase political instability in the country and undermine the public’s trust in the democratic process.