South Africa wants to postpone local elections – an unconstitutional and out of step decision?

Section 24[2] of the Local Government: Municipal Structures Act states that the date of local government elections is officially proclaimed by the Minister of Cooperative Governance and Traditional Affairs in consultation with the Independent Electoral Commission (IEC).[i] The elections must take place between 3 August and 3 November 2021, within 90 days of the expiry of the term of municipal councils. In April 2021, President Cyril Ramaphosa announced that local government elections will be held on 27 October 2021. Due to the impacts of Covid-19 and the corollary Government response, on 20 May 2021, the IEC appointed retired Constitutional Court judge, Justice Dikgang Moseneke, to lead a commission of inquiry on the feasibility of holding free and fair local government elections.[ii] Hence, the commission of inquiry specifically sought and received submissions from experts or bodies representing various stakeholders, including medical experts, electoral monitoring bodies, political parties, civil society and members of the public.

During the period where the Commission was executing its mandate, South Africa faced a third wave of Covid-19 which resulted in record infections (up to 26,000 a day, with large geographic concentrations) alongside a low rate of vaccine rollout (about 5% of the population). Health services were overextended and the country reverted to a level 4 lockdown (level 1 being the least severe and level 5 representing a ‘hard lockdown’). In the midst of this deadly wave, on 20 July 2021, Justice Moseneke published a report of his findings. Relying on mixed expert views, the Commission’s report slanted towards postponement being safer, stating that the local government elections should be postponed to no later than February 2022 and that there is a possibility that the October elections might not be free, fair, and safe. The report found that the current lockdown regulations will impede key electoral activities such as face-to-face registration and the finalization of the certification and nomination processes. It will also disproportionately impact smaller political parties who might not be able to campaign by using digital platforms. More so, the IEC, which conducts civic and voter education programmes mainly through physical contact sessions, cannot fully execute its mandate. Therefore, continuing with elections could violate other rights guaranteed in the Bill of Rights, such as the rights to life, bodily integrity and access to health care, as well as violate a founding constitutional imperative of holding free and fair elections.

The Commission’s report raised important question surrounding its own recommendations: should local government elections be postponed? Section 159 of the South African Constitution provides that a municipal council term should not exceed five years and that upon dissolution or expiration of such council, an election must be held within 90 days. The Constitution contains no provision for a deferment. On 1 November 2021, local authorities will lose their legal authority as the last elections were held 3 August 2016. In effect, the Commission identified the competing obligations within the Constitution, and stated that a legal roadmap of how to overcome this gridlock should be identified.

The Commission identified two possible ways around this: first, amend the Constitution or, second, obtain an order of court permitting the extension of this constitutional term. Amending this section of the Constitution would require a 75% supermajority by the legislature, which is unlikely given time constraints, but also due to a lack of support by other political parties whose vote will be required to jump over this high hurdle.  In terms of obtaining a relevant court order, the Commission declines to evaluate whether this is a valid legal option and simply provides that its ‘current assignment does not require [it] to answer that difficult question which [it] respectfully leave for the courts to decide.’

On 4 August 2021, the IEC launched an application before the Constitutional Court of South Africa, on an urgent basis, to allow the postponement of the local government elections and to obtain a declaration by the Court that current municipal councils will retain legal authority until the newly elected councils have been declared elected. The basis of the application is that the IEC cannot conduct free and fair elections – as guaranteed by the Constitution – in October 2021, and that the Court should consider its application for postponement based on a common law principle that a party cannot be required to perform or comply with an obligation that is impossible.

The Democratic Alliance (DA), the official opposition party, together with several smaller political parties - The Forum 4 Service Delivery, the Makana Independent New Deal, Afriforum, and the African Transformation Movement - launched applications to intervene and oppose the IEC’s proposed relief. The DA submitted that regular elections are a guaranteed fundamental right and that the supremacy of the Constitution (equally guaranteed) means that the Constitutional Court does not have the power to grant an order of suspension of a provision contained in the Constitution. The DA also provides that evidence presented before the Commission was not clear-cut. Expert evidence cast doubt as to whether October elections would be safer than February elections, and comparative experiences cited by the Commission support the ability to host free and fair elections during Covid-19. Other arguments canvassed in opposition to the application included the non-joinder of certain political parties (Forum 4 Service Delivery). AfriForum also highlighted that the IEC previously publicly reassured that it had the ability to discharge its duty to conduct free and fair elections in October.

Several amicus curiae applications were also filed by the Council for the Advancement of the South African Constitution (CASAC), the Institute for Race Relations (IRR), and Freedom Under Law. In the same vein as the DA, the CASAC submitted arguments, stating  that the situation does not amount to one of impossibility, but of difficulty instead. Additionally, the CASAC argued that the success of the application will amount to a de facto amendment of the Constitution and thereby usurp the role of Parliament. The IRR also argued that, should the Court hold the view that it has the power to postpone the elections, the timetable for elections should be variable per province in order to allow for a real response to the Covid-19 pandemic and the situation on the ground. Freedom Under Law also highlighted how any impossibility alleged by the IEC is self-created and that, should it fail to discharge its constitutional duty in October 2021, it is to be held accountable.

However, support for the IEC’s position (partial or full) exists: the Inkatha Freedom Party (IFP) supports the impossibility of free and fair elections in October 2021 and equated the situation with one of war, and by unduly risking the safety of citizens and the integrity of the vote where citizens choose safe conduct (such as not participating in campaign gatherings) at the expense of political engagement. Controversially, the IFP requests the elections be postponed even further, to May 2022. The African National Congress (ANC), the governing party, also supports postponement to a later date (April 2022). It argues that scientific evidence suggests that the proposed date of February 2022 will still not be sufficiently safe to allow for free and fair elections.

How did other African countries deal with Covid-19 and elections?

Interestingly, much is made of the comparative experiences of other countries in their postponements or non-postponements of elections, both by the Moseneke Commission and by the parties arguing for or against postponement before the Constitutional Court.

The Moseneke report considers the trends of election postponements in Africa and globally, and cites figures that clearly shows a trend towards non-postponement of elections. Within the African election calendar, over the span of Covid-19, 14 national or sub-national elections were postponed, while 28 elections were maintained. Of the postponed elections, three have not yet been completed (Botswana, Chad, and Zimbabwe). In terms of postponements, the following are interesting to note:

· Botswana has indefinitely postponed three by-elections because of Covid-19;

· Chad is following a trend of legislative election deferments (five deferments to date), partly motivated by the (still ongoing) internal armed conflict;

· Ethiopia delayed the elections twice, citing Covid-19 for the first delay and logistical problems for the second delay;

· Gabonese elections were cancelled, but this is part of a larger trend of electoral deferments and delays, as well as a 2016 election crisis and allegations of election fraud;

· By-elections in Gambia were postponed and no indication for the underlying reason provided;

· Kenyan by-elections were postponed on the grounds of the increased risk of the spread of Covid-19 due to face-to-face election activities;

· Elections in Liberia were postponed due to financial constraints caused by Covid-19;

· Local elections in Niger were postponed due to continued Jihadists attacks;

· Elections in Somalia in general have been postponed due to logistical difficulties and internal armed conflict;

· Senatorial by-elections in Nigeria were postponed for health reasons, although the Independent National Electoral Commission is specifically empowered by national legislation to postpone elections due to emergencies or natural disasters;

· Libyan municipal elections were postponed due to Covid-19, but in the context of several delays for other logistical reasons, and with debates on the national elections to solidify the transitional government looming in the backdrop;

· Municipal elections in two Tunisians municipalities have been postponed based on what is reported as Covid-19 prevention measures;

· In Uganda, the elections of Special Interest Groups were delayed due to Covid-19;

· Zimbabwe initially suspended all electoral activities without formally gazetting such suspension and without parliamentary intervention. The suspension was viewed by critics as a move to undermine political pluralism.

When considering such postponements, it is quite clear that the latter are seldom based on grounds relating to Covid-19 and, where Covid-19 was cited, existing fault lines in the electoral system often already existed. However, South Africa has reported a much larger rate of infection and death than its regional counterparts.

The Constitutional Court is set to hear oral arguments on 20 August 2021. Given that the application to postpone local elections has been sketched as a possible constitutional crisis (if postponed) or a possible hotbed of further Covid-19 infection (in the case of non-postponement), and in the context of the relative novelty in the region, the authors are certain that this decision in the IEC-matter will be a historic one for South African constitutional law.

[i] Local Government: Municipal Structures Act 117 of 1998.

[ii] Section 14(4) of the Electoral Commission Act 51 of 1996 states that: ‘The Commission may, if it deems it necessary, publish a report on the likelihood or otherwise that it will be able to ensure that any pending ejection will be free and fair’.