Dr Holger Dix, the head of KAS in South Africa, opened the event by reflecting on the last elections that were held in the country where the organisation was an observer. Those elections were deemed free and fair, despite a small percentage of the youth voting. He mentioned South Africa’s electoral system, noting that there is room for improvement in some aspects.
The first speaker was Raenette Taljaard, a political scientist speaking in her capacity as a former Member of Parliament and former Commissioner of the Independent Electoral Commission (IEC). She began by noting that there are deep structural issues in South Africa’s electoral system.
She urged the audience not to lose sight of the clear questions of the Rule of Law and electoral jurisprudence. This, in light of the current battle in the Constitutional Court concerning Tlokwe and the clarification of the voters’ roll. South Africa’s history means that the Constitution does not only enshrine the right to vote in the Bill of Rights, it also is in the founding provisions. As such, issues relating to potential disenfranchisement, raised in the Tlokwe judgment, are important and deserve this attention. Section 7(3)(a) of the Electoral Act and section 5(1)(e) of the Electoral Commission Act are crucial points in this regard. Section 5(1)(e) deals with the powers and functions of the IEC, including the compilation and maintenance of the voters’ roll by means of a system of registering eligible voters, utilising data available from government sources and information furnished by voters. Section 7(3)(a) of the Electoral Act says “a person is regarded to be ordinarily resident at the home or place where that person normally lives and to which that person regularly returns after any period of temporary absence”. This is broad drafting. The reason behind this is that there was no voters’ roll during the transition period and it had to be compiled in the most inclusive manner.
She stated that political parties cannot distance themselves from the Tlokwe matter and others that arise in relation to voting. Political parties are not only creatures of self-interest but are also co-responsible when it comes to matters of electoral integrity. The robust system of dispute resolution in place for political parties ensures that conflict between political parties and the IEC is mediated. Nonetheless, this system excludes independents and therefore fails to address the inclusivity demanded by the dispute resolution system. She emphasised the crucial nature of tolerance, noting that political tolerance is not guaranteed due to the nation’s history. The diversity and competitiveness of political parties require higher levels of political tolerance. She encouraged mindfulness of the risks of hate speech, regardless of the position one occupies in society, from the leaders to non-office-bearing citizens.
She concluded by stating that there is great wisdom favouring continued, maximum enfranchisement and the oversight by the Constitutional Court is important in maintaining this. She ultimately reiterated the collective responsibility borne by all South Africans in addressing these issues.
The second speaker was Reverend Courtney Sampson, the Western Cape Provincial Electoral Officer. He opened by identifying the different challenges of managing an election in an environment of overt suspicion. He noted the high levels of negativity towards the state, which impact the IEC, which is an organ of state. He also noted some frustrations being voiced in the media, such as the domination of a single party in a multiparty democracy. This one party dominance contributes to the above suspicion. Another issue was the lack of a threshold, which means that there are many political parties. Some are registered nationally and others are only registered provincially. For example, in the Free State there are four parties registered provincially, whereas in the Western Cape there are 57. Therefore, managing an election in an environment which he termed as the tyranny of ‘political partyism’ where there exist a plethora of parties, is not a simple task.
He then asked and answered the question of whether there is an attempt to create a notion of a failed state in South Africa. He opined that South Africa is far from being a failed state and that the indicators of such a situation were absent from our political environment.
Regarding the voters’ roll, he referred to the Tlokwe Constitutional Court judgment in November of 2015, where the Court said that where there is an address, there must be sufficient particularity. He noted that there are loopholes, which were being exploited by political parties. The IEC, in accordance with the judgment, is in the process of rectifying these loopholes. The problem is that approximately a third of South Africans do not have formal addresses. It is the responsibility of local government to issue addresses. The question that remains is whether people who do not have addresses will be disenfranchised.
In relation to a dual system of voting he stated that local government uses a dual system but opined that it does not yield the best results. The fact that becoming a councillor requires shortlisting as a candidate by the party and that parties struggle with choosing the candidates, is not encouraging. He stated that beyond a good system, what is needed are committed, honest candidates who have ethical values and address the issues of the people.
He mentioned that the IEC has an inclusive approach, citing a 2011 case to buttress this point. The African Christian Democratic Party (ACDP) had paid a deposit to contest elections in the country but failed to include City of Cape Town on their list, despite having paid enough deposit to do so. In the ensuing litigation, the Constitutional Court said that seeing that there was enough money in the deposit, the intention was clearly to include the City of Cape Town. The Court ordered the IEC to include the ACDP in the elections.
He also spoke about the youth which he said must be listened to, as they are emerging as a force to be reckoned with in various quarters.
The floor was then opened for questions. The questions ranged from foreign participation in elections, to whether the proportional system worked better than the representation system. The ensuing discussion created an environment where important ideas and concepts on enfranchisement were tabled and discussed. A vital lesson learnt was that the IEC cannot be left to address all of the problems surrounding elections. The collective South African society also has a role to play in this regard.
By Rebecca Sibanda: Legal Assistant; Centre for Constitutional Rights