An old public debate was rekindled after media reports that one of my proposals on innovative ways of ensuring the credibility of the IEC “angered” Chief Justice Mogoeng Mogoeng during my interview on June 26 by the Panel established to fill vacancies in the Electoral Commission. I sensed robust engagement, not anger.  To me, questions posed to me by the panelist were incisive and the discussion on current challenges facing our democracy was spiced with examples of fond childhood memories of spy movie scenes in which CIA and KGB agents attempted to infiltrate information systems protecting national security of their respective countries.

The discussion pondered on the possibilities of foreign interests manipulating the outcome of our 2019 elections. 

In answer to a question on what more could be done to curb corruption and enhance the independence of the IEC, I proposed legislation amendments to allow commissioners to choose the chairperson and vice chairperson amongst themselves, instead of leaving that process in the hands of the president, as is currently the case in our law. 

In concluding that discussion, there was convergence also charecterised by a merger between a line of questioning by a seasoned judge seeking to establish and pronounce on what is right or wrong and a line of answering by a young academic and human rights activist seeking to open public space to philosophize and encourage others to think differently about ways of doing things.

I agreed with the chief justice that it was dangerous to popularise issues on perceptions about credibility deficiencies of certain individuals such as the current chairperson of the IEC at the risk of discrediting the institution, and that it was time South Africans refused to be “duped by those with agendas”. 

However, the debate on enhancing the independence of Chapter 9 is not new or personal, and issues of concern raised during the past ten years remain unresolved. Put differently, my participation the debate preceeds the “noise” around the appointment of Vuma Mashinini as chairperson of the IEC, which I used as an example during the interview.

Over the years the debate has been framed this way: “The question is, shall we perish in the dark, slain by our own hand, or in the light, killed by our enemies?” 

For example in 2000 the then South African Human Rights Commission (SAHRC) chairperson Barney Pityana said in parliament that he and his colleagues (including those in organised civil society structures) would like to see parliamentary questions and actions display more understanding and support for the commission, “exploring the mechanisms for the exercise of the independence of the Chapter 9 commissions, for example”.

Also, in 2014 the then Deputy Chief Justice Dikgang Moseneke called for the review of the powers of the national executive, saying too much power rests in the presidency. Addressing a conference on 20 Years of Democracy, Moseneke said as much as the constitution is supposed to rest on co-operative governance between the different levels of power, “a careful examination of the powers of the national executive chapter in the constitution displays a remarkable concentration of the president’s powers of appointment.” He suggested that in the next two decades South Africa should revisit the dispersal of public power because the manner in which power is currently allocated is not always optimal for advancing the democratic project.

In my interactions with the Panel I explained that current public perception of factors militating against the independence and impartiality of the commission, based on a number of opinion polls by various research institutions and submissions of political parties in interactions with the IEC, could not be ignored. Instead, there needs to be a robust discussion about how best to insulate the IEC from this. 

I also clarified that I did not think there was anything wrong with the process of shortlisting, interviewing and recommending of candidates to parliament and that maybe after more than 20 years of democracy, the country needed to look at a way of doing things differently when it comes to allocation of roles for commissioners. This in order to add density of the independence of the institution.

Given the ubiquitous reach of political parties in every aspect of South African politics, the incentives and behaviour of individual public representatives – and especially their relationships with voters after their election – are often neglected. To put matters starkly, we know relatively little about how much MPs can typically ‘get away with’ once elected, including selection of three names from the list recommended by the Panel. To use another phrase: how much scope is there for politicians to substitute their private desires to increase their electoral fortunes for promised public policy goals? 

While the Panel interviews and recommends suitably qualified individuals to fill vacancies in the Electoral Commission, it is elected representatives in parliament that  decide on which names are ultimately appointed at any given time. The administratively balanced interviewing and recommending process that is initiated by the Panel does not produce a final result to the process of filling vacancies. Instead, it is followed in Parliament by a politically imbalanced process that has a unique life of its own. 

In effect, the administrative balanced stage of the process is passed on to a politically imbalanced stage of the process that can in some way be kept in check by allowing the newly appointed commissioners to choose the chairperson and vice chairperson amongst themselves for the president to assent to. This is not something new as it was the case also with other commissions such as during Pityana’s time in the SAHRC. 

And so, if this opportunity to fill three vacancies in the IEC is generally regarded as South Africa’s most important experiment in how the enjoyment of electoral rights and the dispersal of public power can be reconciled in a maturing democracy, then the candidate interviews and the appointment process, in all of its multiple stages, is the crux of that test. This is particularly important at a time when those born after 1994 are increasingly assuming positions of responsibility in the country’s public and private institutions. It is also particularly important in the context of current challenges outlined in the strategic plan of the IEC in relation to preparations for the 2019 elections. Elections and commissioners come and go; the constitution and institutions established to support democracy much less so. This is critical.

Nkosikhulule Xhawulengweni Nyembezi is a researcher, policy analyst and a human rights activist based at UCT Law School 

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