Issued by Ismail Joosub on behalf of the FW de Klerk Foundation on 08/07/2024

Introduction

In democratic societies elections are pivotal events that define the relationship between citizens and their government. They provide a mechanism for citizens to express their will, choose their representatives and hold them accountable. This article critically examines what constitutes free and fair elections in South Africa, exploring the legal framework, the role of the Independent Electoral Commission (“IEC”), international standards and the challenges faced in upholding electoral integrity.

Types of Elections and Constitutional Mandates:

South Africa conducts elections at national, provincial and local levels, as mandated by sections 46(1)(a), 105 and 157 to 160 of the Constitution. National elections, governed by section 46(1)(a), are held every five years to elect members of the National Assembly. Provincial elections, regulated by section 105, coincide with national elections and determine the composition of provincial legislatures. Local government elections, as stipulated in sections 157 to 160, occur every five years to elect municipal councils responsible for local governance.

Section 19(2) of the Constitution guarantees the right to free, fair and regular elections. These elections serve as the cornerstone of our democracy, enabling citizens to participate in governance by electing representatives to Parliament out of which the Executive is chosen (section 91). The Electoral Act, 1998, complements this constitutional mandate by providing detailed provisions on the conduct of elections. It ensures transparency, fairness and integrity in the electoral process, thereby preventing intimidation, fraud, or any form of malpractice.

By adhering to these constitutional provisions and electoral laws, South Africa reinforces its commitment to democratic principles, fostering a political environment where electoral outcomes accurately reflect the will of the electorate and uphold the integrity of the nation’s governance.

What Makes Our Elections Free and Fair?

1. Constitutional and Legal Safeguards

The credibility of the South African elections rests on robust constitutional provisions and specific legislative frameworks. Section 19(2) of the Constitution guarantees every citizen the right to free, fair and regular elections, underscoring elections as fundamental to our democracy. This foundational principle is reinforced by the Electoral Act, 1998 and the Municipal Electoral Act, 2000, which govern national, provincial and municipal elections respectively. These Acts delineate rules, procedures and conduct standards throughout the electoral cycle, ensuring fairness and transparency in the electoral process.

2. Secrecy and Freedom of Choice:

The freedom of choice when voting is enshrined in section 19(1) of the Constitution, which clearly states that “every citizen is free to make political choices”.

Furthermore, the Constitution (section 19(3)(a)) guarantees the secrecy of the vote, allowing voters to cast their ballots confidentially without fear of reprisal or intimidation. Sections 90(2)(a) and (b) of the Electoral Act prohibit any disclosure of any information about voting or the counting of votes, or even opening any ballot box or sealed container carrying such ballots.

3. Role of the IEC:

The IEC is an independent institution, established by section 190 of the Constitution, which manages national, provincial and municipal elections. It is required to ensure that elections are free and fair and is responsible for declaring the results. (It is further also governed by the Electoral Commission Act, 1996.) 

Through its independent status and rigorous enforcement of electoral laws, including the Electoral Code of Conduct, the IEC has promoted transparency and impartiality in electoral processes. The commission’s commitment to fostering public confidence and ensuring democratic participation in South Africa is underscored by voter education campaigns and stringent measures against electoral malpractice.

The IEC has also institutionalised robust risk management protocols to enhance its role in overseeing free and fair elections, as mandated by the constitutional framework. These protocols include:

• Internal Research and Scenario Planning Mechanisms: The IEC engages in ongoing internal research and scenario planning to anticipate and mitigate potential risks to electoral integrity. This proactive approach allows the commission to adapt strategies based on emerging challenges and scenarios.
• Coordination with the Justice, Crime Prevention and Security Cluster (“JCPS”): Collaboration with the JCPS cluster ensures that security measures are aligned with electoral processes, enhance safety and minimise disruptions during elections.
• Project on Coordinating Conditions for Free and Fair Elections: The IEC leads initiatives aimed at coordinating conditions conducive to free and fair elections, working across various sectors to address systemic issues and ensure equitable participation.
• Conflict Mediation and Prevention Committees: These committees are pivotal in pre-emptively managing and resolving electoral disputes, fostering peaceful electoral environments and minimizing potential conflicts.
• Legislative Workshops: The IEC organises legislative workshops to educate stakeholders on electoral laws and regulations, promoting compliance and transparency among political parties, candidates and electoral officials.
• The Electoral Court: As part of the Electoral Act (section 56), the Electoral Court adjudicates disputes related to electoral processes, ensuring legal recourse and upholding the integrity of electoral outcomes through impartial judgments.

4. Adherence to Electoral Code of Conduct:

Under the Electoral Act (section 99), all registered political parties and candidates must adhere to the Electoral Code of Conduct. This Code mandates strict guidelines that parties, candidates and their agents must adhere to from the proclamation of the election date until the official announcement of results.

Parties and candidates commit to several obligations under the Code, including:

• Opposing Political Violence: They must publicly denounce and oppose any acts of violence or threats directed at other parties, the Electoral Commission, the public, or the media.
• Notification of Events: Parties are required to inform authorities about planned marches or rallies, promoting transparency and allowing for adequate security arrangements.
• Cooperation with Electoral Authorities: Recognition and cooperation with the Electoral Commission is mandatory, ensuring smooth electoral processes and compliance with legal requirements.
• Support for Law Enforcement: They must collaborate with law enforcement agencies to investigate election-related crimes and maintain public order during electoral periods.
• Acceptance of Results: Parties and candidates commit to accepting the final results of the election or pursuing legal challenges through the appropriate channels.

Furthermore, the Code prohibits various behaviours deemed detrimental to fair elections, such as inciting violence through inflammatory language, intimidating voters or candidates, spreading false information, or engaging in bribery. Violations of the Code constitute criminal offences punishable by fines, imprisonment for up to 10 years, or penalties such as the forfeiture of election deposits, restrictions on political activities in certain areas, or even cancellation of party registration.

The Electoral Court, empowered by the Electoral Commission Act, oversees disputes related to the Code’s enforcement, ensuring accountability and upholding the integrity of electoral processes across South Africa.

5. International Standards and Oversight:

South Africa is committed to upholding several international commitments and standards for free and fair elections, aligning itself with key frameworks that promote democratic governance and electoral integrity. As a member of the international community, South Africa adheres to the Universal Declaration of Human Rights (“UDHR”), which affirms the right of individuals to participate in government and have equal access to public service. The UDHR explicitly states in article 21 that, “Everyone has the right to take part in the government of his country, directly or through freely chosen representatives” and further that “the will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.” The UDHR was adopted by the United Nations General Assembly on 10 December 1948. South Africa, being an active member of the United Nations, is bound to it simply as a member of the community of states.

Additionally, South Africa is a party to the International Covenant on Civil and Political Rights (“ICCPR”), which guarantees citizens the right to vote and stand for election in genuine periodic elections. Article 25(b) thereof states that every citizen shall have the right “to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors.” South Africa ratified the ICCPR on 10 December 1998, with entry into force in March 1999.

Regionally, South Africa supports principles articulated in the African Charter on Human and Peoples’ Rights, particularly article 13, which underscores the right to freely participate in governance. It states therein that “every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law.” South Africa acceded to  this Charter on 9 July 1996.

6. Electoral Observers:

Election monitoring such as local and international observations are crucial in ensuring accountability, transparency and adhering to democratic laws – thus making elections free and fair.

Several local democratic civil society groups and international observers’ part of the Southern African Development Community and the African Union were involved in observing the 2024 South African election, with the latter deeming that the elections were held under “peaceful” conditions.

Conclusion

In conclusion, free and fair elections are fundamental to the democratic governance of South Africa. The 2024 national and provincial elections have once again highlighted the importance of upholding electoral integrity and ensuring that the will of the people is accurately reflected through the electoral process. As we reflect on these elections, it is essential to acknowledge the achievements made in promoting democratic participation while also addressing the challenges that threaten electoral integrity.

Moving forward, it is imperative to strengthen mechanisms that safeguard the electoral process, enhance transparency and uphold the rule of law. By doing so, South Africa can reaffirm its commitment to democratic values and ensure that future elections continue to be free, fair and credible.

Upholding the principles of democracy requires a collective effort from all stakeholders – government institutions, political parties, civil society organizations and citizens – to protect and preserve the integrity of our electoral system.

By maintaining high standards of electoral conduct and accountability, South Africa can strengthen its democracy and inspire confidence in the electoral process among its citizens and the international community alike.