There have been very few cases in which the Electoral Commission of South Africa (IEC) had its credibility tested in the way it was over the last few weeks.
Never before had a former president won an Electoral Court ruling overturning a decision of the IEC.
It is also extremely rare for one of its commissioners to be accused of bias in public and in court, in the way in which former president Jacob Zuma’s uMkhonto Wesizwe (MK) party made claims against Janet Love.
The finding by the Constitutional Court, that her comments that a person who had been sentenced in the last five years to a term of more than 12 months in prison, were not directly about Zuma, must surely allow her to remain in her job.
If the court had found against Love, there would have been intense pressure on both her and the IEC. Some parties (including MK) might well have argued that all of the decisions in which she was involved would have to be revisited.
It would have been the first time a commissioner on the IEC had suffered a finding against them of bias (Pansy Tlakula did resign from the IEC after a scandal around a tender for office equipment, but not because of bias).
However, the IEC and the Constitutional Court will not be immune from further political attacks.
Two-thirds majority
Already MK has said this ruling was proof it needed a two-thirds majority in Parliament, which “will enable us to transition from a constitutional democracy to a parliamentary system, where the majority will determine the nation’s direction, as opposed to the often, 10 highly compromised and conflicted individuals [the judges of the Constitutional Court].”
This will feed into the longer-term agenda of claiming the legal system and the establishment (including the IEC) are biased against them.
Of course, there is little evidence on which to base this argument (for example, the IEC argued in favour of MK’s registration and against the ANC; judges have ruled in favour of MK against the ANC in both the registration case and the trademark case — and Zuma’s party was happy to accept both rulings).
But it is also part of MK’s longer strategy to implement its manifesto promise to do away with the Constitution altogether.
Meanwhile, the five judges of the Electoral Court may now have to ponder their three separate rulings which all agreed that Zuma can be an MP.
As legal commentators have argued, the Electoral Court’s reasoning was hard to follow.
While time should not have been a factor in the Electoral Court decision, it did have to issue an order, and thus make a decision, less than a day after hearing the case.
This was because of how the electoral timetable had been gazetted through the IEC and Parliament. This led to a long wait (with much speculation) for the reasons underpinning the judgment.
Frankly, no ruling with such high stakes should have to be made this way. And while orders are often handed down with their reasons following later, it would surely be better in Electoral Court cases for this to be avoided.
Also, as Judges Matter has pointed out, the Electoral Court is not properly resourced. Its judges do not have proper support (in fact, as Judges Matter says, a registrar from the Supreme Court of Appeal is “essentially moonlighting as the registrar of the Electoral Court”), and there are not enough of them to deliver properly on their mandate.
Both the election timetable and the lack of resources at the Electoral Court are issues the government should resolve before the 2029 election, if only to reduce the pressure on judges, and to produce better outcomes.
MK now has to face the fact that Zuma will not be going to Parliament (although he does remain the face of the party on the ballot paper when people vote), which could have other consequences.
Complete mystery
This is a party which has never had a conference or any kind of gathering at which its leaders have been elected.
The process the party used to select those on its list of parliamentary candidates is a complete mystery.
This may lead to surprising results. For example, News24 has reported that Ace Magashule’s African Congress for Transformation held its manifesto launch in a building owned by the religious leader Bishop Bafana Zondo — who is a parliamentary candidate for MK.
Considering that well-established parties with clear criteria to select candidates for Parliament have had to deal with several disputes, it is likely that MK will have similar problems after the election.
It will have to appoint people to lead its caucuses in Parliament and provincial legislatures.
Without Zuma in Parliament, there may be no clear leader — and no established process for appointing one.
MK has already had several internal disputes, and its founder, Jabulani Khumalo, has been expelled, surely signs of troubles to come.
Any party wishing to cooperate with MK in a coalition will find it difficult to know who to work with. If Zuma is unavailable for a meeting, who is empowered to make decisions that the party’s MPs will obey?
While MK may say that it has such people, the lack of transparency could make it impossible for anyone to negotiate with them, because there will be no certainty that their decisions will stick.
Bad scenarios averted
The Constitutional Court ruling has prevented a few bad scenarios from occurring.
For example, Zuma’s legal team had argued that Parliament should decide whether he was eligible to be an MP. There was also an argument that the IEC was not the correct body to determine whether he could be a candidate for Parliament.
This could have led to MPs deciding whether someone could be an MP.
Both of these scenarios would have led to chaos in the days after the election, at the first sitting of the National Assembly, and now neither will come to pass.
This ruling was presumably the last chance for MK to use legal proceedings as a legal tool before the elections. For the next few days, like other parties, it will have to focus on simple campaigning.
The true character of the party may emerge in the days after the election results are announced. DM
Read more in Daily Maverick: Elections 2024