The independent electoral commission: free and fair elections

A citizens right to vote in South Africas elections is enshrined in the Constitution, so whether or not a voter has a fixed address is immaterial. Picture: Courtney Africa/African News Agency (ANA)

South Africa is in election mode in the run up to the general election in May this year, which is likely to be highly contested. The leader of the ruling ANC and President of South Africa, Cyril Ramaphosa, presented its political manifesto on Saturday 12 January to a capacity audience at the iconic Moses Mabida Stadium in Durban, with great fanfare. Other parties will shortly be following suit and an announcement of the exact date in May is eager awaited by all. The Independent Electoral Commission (IEC) has the awesome responsibility of managing the Election to ensure that it is free and fair. 

The Democratic Alliance (DA) has erected a controversial bill-board declaring that ‘The ANC are killing our people’ referring, inter alia, to the Marikana massacre and the Esidimeni tragedy. This has precipitated intense anger from the ANC who are going to test the permissibility of the statement with IEC as to whether it violates the code of conduct or regulations of that political parties are subject to. This is an indication that the campaigns waged by the political parties are likely to be intensely robust in character and indeed fiery histrionics will be involved, as indicated by the DA’s bill-board saga above, in which the board was subsequently vandalized.

The Independent Electoral Commission Act of 1993 removed the process and authority for the verification of elections from the erstwhile National Party Government in the run up to the 1994 first and historic democratic election. Although the Electoral Act of 1993 has been repealed, it however established a new dispensation and approach to elections. For this very purpose a temporary Independent Electoral Commission (IEC) was established with the cardinal responsibility of ensuring a fair electoral process and authenticating the result on an election as ‘substantially free and fair’ for the first democratic on racial election of 27 April. The IEC was armed with extensive powers, for the administration of the election, for voter education, for monitoring political campaigns, and ensuring that the political parties adhere to an electoral code of conduct. This first Commission was appointed by the former State President, Mr F W de Klerk, on the advice of the Transitional Executive Council.

The Commission was to be comprised of ‘impartial, respected and suitably qualified men and women’ representing a cross section of the population. It had to be as a whole ‘independent and separate’ from the erstwhile bearers of political authority. It was to continue in existence until dissolved upon the completion of its mandate. This first IEC was chaired by the esteemed and redoubtable Judge Johan Kriegler. He was followed by also highly esteemed and nationally admired Dr Brigalia Bam. Unfortunately the person subsequently appointed Pansy Tlakula resigned under a cloud because the erstwhile Public Protector found her ‘guilty of gross maladministration relating to a lease agreement of the IEC headquarters in Centurion. As a result the position was filled by Mr Terry Tselane in an acting capacity until former President Jacob Zuma made an announcement of Mr Vuma Glenton Mashinini as the new chairperson. 

Section 190 of the Constitution of 1995 provides for an Electoral Commission as one of the chapter 9 state institutions, which are designed to support constitutional democracy. It is tasked with managing elections in the three spheres of government, national, provincial and local; ensuring they are free and fair; and declaring the result within a stipulated time. A permanent IEC was established on 17 October 1996 in terms of Act 51 of 1996. It has subsequently managed general elections both national, provincial and local subsequently and at present is managing the election process for the general election in May this year.

The Electoral Act of 1998 further developed the law relating to elections and voting for a democratic body politic. It did so by creating a national common voters’ roll and rules in relation to registration. In addition it also created detailed rules for the proclamation and preparation of elections. Chapter 4 of the Act deals with procedures applicable at elections. It also established an Electoral Court to address disputes and provides for, inter alia, an Electoral Code of Conduct.

The exact number of members of the IEC and their terms of office must be prescribed by national legislation. The Electoral Commission Act has been enacted for this purpose. It as a result stipulates that the Commission must consist of five persons. The objectives of the Commission are to ‘strengthen constitutional democracy and promote democratic processes’.

It must however be noted that the primary task of the IEC is to manage elections, rather than conduct them. The conduct of elections is in the hands of the Chief Electoral Officer, as is the administration of the Commission. Therefore, the recruitment, deployment and payment of staff must done at municipal local level by local personnel who know and understand local conditions. The IEC has additional powers to facilitate elections in the three spheres of government ensuring they are free and fair and to declare results within a specified period, which is seven days. It also has ancillary tasks.

A vital question that must be addressed is how the freeness and fairness of an election determined? The Electoral Act of 1998 makes specific provision for neutral observers for our election in South Africa. They include international observers from organisation such as the African Union, the European Parliamentarians for Africa and the Southern African Development Community.  Observer missions compile a report and announce their findings about the elections. In addition, political parties contesting the elections are entitled to have vigilant agents and monitors at voting stations.

All South Africa’s general elections, national, provincial and local since 1994 have been found to have been found in general to be free and fair. Although this is a feat of which all South Africans can be justly proud, as it indicates that we are indeed a democratic state in this regard, the IEC and the electorate, inter alia, cannot be complacent and rest on their laurels. The general election in May this year is likely to be the most highly contested and unpredictable one since the inception of our democratic dispensation. It presents a singular challenge to our fledgling democracy and it must be remembered that the cost of freedom remains ‘eternal vigilance’ for all involved.

George Devenish is Emeritus Professor at UKZN and one of the scholars who assisted in drafting the Interim Constitution in 1993.