Analysis: After by-elections delay, unclear if IEC can organise voter lists in time for municipal elections

You can guarantee that any issue that the Constitutional Court gets involved in has a long and tangled history. It is certainly the case with the IEC and their handling of Tlokwe by-elections in December 2013. Briefly: a group of former ANC councillors, then running as independents, complained that the IEC had not given them enough information to campaign ahead of by-elections in Tlokwe (the area around North West city of Potchefstroom). In the end, they won in the Constitutional Court and the elections there were annulled and re-run was ordered.

At issue was the complaint that a large number of people had voted in the wrong ward (which matters in local elections). But another major issue was that the information on the voters roll given to these candidates did not include the addresses of these potential voters. As a result, they could not properly campaign.

Those elections were to be re-run on Wednesday. But late on Tuesday afternoon, the leader of these independent candidates, David Xolile Kham, went to the Electoral Court, saying he still had not been given a voters roll with the proper information on it. The Electoral Court agreed and ruled that the by-elections in Tlokwe must be postponed until the voters' roll problems were sorted out.

So far, so good, no drama.

But here’s where it gets tricky: At around midnight on Tuesday night, the IEC announced that it was postponing all the by-elections scheduled to take place around the country. The reason for this was that “While the orders only related to the six wards in Tlokwe listed in the court application, the Electoral Commission considered a postponement in the interest of free and fair elections noting that all by-elections share similar circumstances as those ordered for a postponement by the court.” In other words, the problems with the voters rolls around the country would be the same as those in Tlokwe. And thus if someone challenged the results of those polls on that basis, they would win. Which makes it pretty unsafe to hold an election.

The question then becomes this: If the IEC is unable to get the voters roll correct in seven wards in Tlokwe, and then cannot get it right in the other areas scheduled for by-elections this week, can it really get it right during local government elections around the entire country of South Africa?

The first, and obvious answer, would surely be: uhm, no.

But first, we have to look at what the Constitutional Court said in its judgment last year. In that ruling it explained how "every aspirant voter when registering to vote requires them to provide the address at which they ordinarily reside." It went on to say that the information provided had to be "sufficiently clear" but did not compel the Chief Electoral Officer to "undertake and investigation of the address given". It also took into account how it was easy to get an address for upmarket suburbs, but difficult for informal settlements, spelling out that a "generic address such as Crossroads in Cape Town...is simply insufficient..."

One of the key parts is this: "The IEC is also labouring under a misapprehension, which this judgment should help to dispel, that it is obliged to verify voters’ addresses when they register. That is incorrect. What they are obliged to do is obtain sufficient information from the voter as to their ordinary place of residence, to ensure that they are registered in the correct voting district and correct ward."

It goes on to say that if people do not have an address, the IEC is "not obliged to refuse them registration. Nor is the segment of the voters' roll relating to that voter invalidated by the absence of an address." It says that the IEC must try to obtain "some detail that will serve as an address for the purposes of the roll".

Then, in the order of the court, on this issue, the judges boiled it down to this:

"It is declared that when registering a voter to vote in a particular voting district after the date of this order, the Electoral Commission is obliged to obtain sufficient particularity of the voter's address to enable it to ensure that the voter is at the time of registration ordinarily resident in that voting district"

Of course, being a court order, and thus an interpretation of a law, it is, itself, open to interpretation. As the IEC and the Electoral Court have already shown this week.

What is quite astonishing here is that it was only last week that the IEC declared itself ready for these elections. Clearly it wasn't. What's also odd is that it surely had plenty of time to go though the minutiae of last year's ruling to make sure it got everything right. Especially when Kham and the other candidates have a litigious history.

It also clearly did not foresee that Tuesday's drama could happen, and lead to the eventual cancellation of all of the by-elections - something that a good lawyer could perhaps have predicted once Kham entered the court room.

The question of course, is what now?

The IEC has very few options. If it's not ready to hold these elections in Tlokwe and elsewhere now, it's unlikely to be by the time of the local government elections. The voters roll stands at around 25 million people. It would take a Herculean national effort to sort all of that out in time.

What it probably needs to do is to either appeal the Electoral Court's decision, or simply go back to the Constitutional Court. There it could ask for "clarity" on the earlier decision. That is probably the better course, as it it will get a final word more quickly. Even if the request for "clarity" really amounts to "please change your judgment".. which could be humiliating, but the quickest way out of this mess.

The alternatives are nothing short of horrible. South Africa during election season, if you hadn't noticed, is ugly. We do not need to prolong the agony. It's clear now the local government elections are going to take place later rather than sooner. But imagine what could happen if the IEC is unable to administer an election within the constitutionally demanded timetable (five years and three months since the last one). What then?

Even worse, imagine if the elections do go ahead, and those who lose those polls decide to dispute every result. It would be election through lawfare, continuous and unending. In the past, that might not have mattered so much, as parties like the DA or the UDM would have taken their victories where they could, and moved on. But Julius Malema has a very real interest in challenging the establishment wherever possible. In this case, the IEC would be the establishment, and he would have everything to gain by refusing to accept the outcome of an election.

What then?

It is unlikely to get to that point. Clever people, at the IEC and on the bench, should be able find a way out of this. But they don't have that much time. And the IEC is beginning to suffer a loss of legitimacy. And considering what it does, that could be fatal. DM

Photo: People queue to cast their votes during the South African municipal elections in Soweto May 18, 2011. REUTERS/Siphiwe Sibeko.