JZ’s Electoral Court victory makes final weeks before SA’s Elections 2024 alive with possibilities

9 Apr 2024

The Electoral Court decision allowing former president Jacob Zuma to be a parliamentary candidate for the uMkhonto WeSizwe (MK) party has raised several questions that are difficult to answer. However, the overall significance of the ruling is that MK may now feel it has momentum going into the 29 May general election, which could seriously energise the poll.

The Electoral Court’s ruling overturning the Electoral Commission of SA’s (IEC’s) decision to uphold an objection against former president Jacob Zuma standing for Parliament came as a surprise to most people who had been following the case.

This was primarily because, as has been pointed out, the Constitution is very clear on this matter: persons who have been sentenced to a term of more than 12 months in prison in the last five years cannot represent a political party in Parliament.

https://www.dailymaverick.co.za/article/2024-03-14-jacob-zuma-criminal-record-mk-party-electoral-list-fact-check/

As Zuma was sentenced to 15 months in prison three years ago, it seemed obvious he would not be eligible to stand.

Before the Electoral Court decision, experts including constitutional law Professor Pierre de Vos said he was ineligible.

This writer had also assumed this to be the case.

So clear is the constitutional language that IEC Commissioner Janet Love said in January that Zuma’s candidacy would be “impeded” by his sentence.

It is one of the strange nuances of this situation that while MK has used Love’s comment to claim the IEC was biased against Zuma, it was Zuma who appointed Love as an IEC commissioner in the first place.

The matter has been complicated by the fact that while the Electoral Court has made its ruling, it has not yet released its full judgment.

This is not the fault of the judges (in this case, the Electoral Court was made up of three judges and two professors), but rather the election timetable.

Because this timetable has been gazetted, it cannot be changed. As a result, the court heard the case on Monday and had to hand down a ruling on Tuesday.

As the judges told the parties at the end of Monday’s hearing, this meant they would issue an order, and the full judgment would come later (this is not unusual, courts do this in many urgent cases).

However, it does mean many people will now be discussing the ruling without knowing why the court ruled in this way.

(Yes, it is indeed messy.)

The judges should never have been put in a position where, facing such a tight deadline, they had to make a controversial decision that could lead to a volatile situation. Steps need to be taken to ensure this does not happen again.

Not about MK

We need to reflect on what this decision was and what it was not.

It was never about MK, or whether Zuma could be “on the ballot”. It was only about whether Zuma could be a candidate for Parliament. The outcome of this case has no bearing on whether MK is registered as a party (it has already won that case against the ANC), and it would never have prevented Zuma’s image from being on MK’s election posters.

In the absence of a full judgment, it is impossible to assess whether there are grounds for an appeal — and it is not clear whether the Constitutional Court could hear an appeal by the IEC against this decision.

However, if the IEC were to appeal, that would cause further complications. The question of Zuma’s eligibility for Parliament because of a sentence he received would have to be decided by the judges who imposed that sentence.

He would surely argue that most of the judges on the Constitutional Court are conflicted and should not hear the case.

That alone may force the IEC to decide that an appeal is not worth proceeding with.

But the IEC is not the only party in the matter.

One of the other parties is a person who lodged the objection with the IEC, named in court documents as Dr Maroba Matsapola.

As a party in the case, he would surely have standing to appeal, if he so chose. He may well feel that he has the right to apply to a court to stop a former convict from going to Parliament.

Consequences

It is hard to know how this will play out, because so many of the circumstances are so unprecedented.

But if there is no appeal (the most likely outcome) this could allow MK and Zuma to claim that the Electoral Court’s decision is proof that the IEC is biased against them — and to not accept the IEC’s announcement of the election results.

There are other consequences too.

Imagine, for a moment, that it turns out there are serious problems with the Electoral Court’s reasoning that an urgent ruling was necessary. It could set a precedent for other candidates, or it could be that the court was split three:two along a particularly contentious issue.

If there is no appeal now, the decision stands, and Zuma could be in Parliament for the next five years.

There are other questions, including whether Zuma will in fact return to Parliament.

Technically, another scenario could play out.

In the days after the elections, new MPs will have to stand up in the National Assembly to be sworn in. When it’s Zuma’s turn, an MP from another party could lodge an objection, based on the Electoral Court’s ruling.

The person presiding over this incredibly difficult moment would be Chief Justice Raymond Zondo, who headed the commission that made the decision to take Zuma to the Constitutional Court, which led to his sentencing.

But - and again, this is speculation because there is no judgment - it may turn out that all the Electoral Court has done is to allow Zuma to be a candidate, and that this ruling does not mean Zuma can go to Parliament.

This may seem strange, but it is exactly the kind of fine hair on which a legal argument can turn.

In the meantime, Zuma’s supporters will surely relish the prospect of him returning to Parliament — and in particular, the idea that he could, in parliamentary proceedings, ask questions of President Cyril Ramaphosa (presuming the ANC is able to vote him into office again, with or without coalition partners).

This might result in a strong MK caucus in Parliament, capable of using parliamentary procedure to great effect.

They could rival the EFF in the use of disruptive tactics, making the National Assembly very difficult for a governing party, or a coalition.

The most immediate effect of the decision is to give MK huge momentum. The energised party will surely use the decision to continue to claim in public that it is the legitimate voice of the people.

MK dominated much of the reporting on the election campaigns over the last few weeks — and now it will be able to do that for some time to come.

The Electoral Court decision is likely to electrify the election.

Because of the decision, MK could do better than previously presumed. This will force other parties to energise their campaigns. In particular, the ANC, the IFP and the EFF will have to try to lose as few voters as possible to MK.

For the DA, there is probably only an upside to this. There is evidence that a Zuma-led ANC helped to increase their share of the vote — the prospect of Zuma once more having political power might well do the same for it again.

Once again, Jacob Zuma has shown that he is almost unsurpassed in understanding our society. There are likely to be more surprises in store. DM

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Not about MK

Consequences