It appears that the Independent Electoral Commission (IEC) has not yet realised that the MK party has landed an own goal in its dispute with the commission that the election was not free and fair. The party has launched wild claims that there was vote-rigging in the counting of the votes, claiming that it should have gotten some nine million votes.
This reminds me of the game between Austria and France during the current UEFA Euro soccer championships, where Maximilian Wöber landed an own goal for France. It took Didier Deschamps, the French coach, a moment to realise what happened before he broke out in a jubilant display of joy.
It seems that the IEC is still caught up in that stunned moment and has not yet realised that the MK party has landed an own goal with their candidate-rigging of the list of candidates designated to represent the party in Parliament.
To recap: the IEC has designated 58 members from the MK party’s electoral lists to represent them in Parliament after the counting of the votes was concluded. It did so in terms of the procedures set out in item 14 of Schedule 1A to the Electoral Act. That list does not contain the name of former Justice John Hlophe because he was not a candidate for the party in the elections.
Read more in Daily Maverick: Judged, disgraced and now recycled — Hlophe’s return to the main parliamentary stage
The list was handed over to the Chief Justice for the inauguration of all elected candidates as members of Parliament. Before members of Parliament can begin to perform their functions, they must swear or affirm faithfulness to the Republic and the constitutional order (section 48 of the Constitution). How it should be done is set out in item 4 of Schedule 2 to the Constitution.
If the Chief Justice is unable to perform the ceremony, he may designate. Where casual vacancies arise at a later stage, the oath may be sworn before the presiding officer of the Assembly, i.e. the Speaker.
The MK party initially boycotted the ceremony overseen by Chief Justice Raymond Zondo. Their members were therefore sworn in later by the Acting Judge President of the Western Cape High Court, Patricia Goliath, who was designated by the Chief Justice.
In the time between the two ceremonies, however, the MK party had illegally and unconstitutionally “rigged” the list of designated members that was handed over to the Chief Justice by the IEC.
It is of great concern that Justice Goliath did not stop the inauguration procedures, but proceeded to swear in member(s) who were not on the list of designated candidates who were duly elected as members of Parliament. The inauguration procedure is not merely an illustrious ceremony, but a moment of great constitutional import because it constitutes the new Parliament for the next legislative term.
The inaugurating judge is therefore under an obligation to examine whether the persons taking the oath are the same persons who are on the IEC’s list of designated members.
The oath that should be taken in terms of section 48 of the Constitution is a serious matter. The Sunday Times reported at the weekend that Hlophe told an audience how he sees the law: “I call it a legal ‘shitstem’ which was introduced and everything else changed; the result is that the laws in our courts, which we have mastered by the way… it was imposed upon us and forced down our throats.”
One may therefore ask how Justice Goliath could justify the inauguration of a non-elected member of Parliament and accept Hlophe’s pledge given the stance he voiced over the weekend.
How did this mess come about?
According to reports, the MK party had submitted a supplementary list of candidates to Parliament before the weekend — apparently after it had depleted its list of candidates submitted for the elections. The question is whether this was legal?
I have explained the applicable law here. Despite the fact that there was no vacancy that could be filled by the MK party since their designated members were not even sworn in to take up their seats in Parliament, the party’s leadership decided to throw off all candidates on their candidate list(s) to make place for former Justice John Hlophe to be the leader of the party in Parliament.
In terms of item 17 of the Schedule, a party may, “after the designation of candidates for each party by the Electoral Commission… supplement its lists of candidates on one occasion only at any time during the first 12 months following the date on which the designation of representatives… has been concluded, in order to fill casual vacancies”. The names of the persons who are added must be made at the end of the list.
In other words, the procedures in terms of which the MK party removed one/some of their designated member(s) for Parliament from the list of the IEC to make place for John Hlophe is not covered by this provision.
Item 15 in fact says that a party “may not supplement a list of candidates for any legislature prior to the designation of representatives in terms of item 14” by the Electoral Commission, but item 17 also makes clear that the supplementing of a candidate list serves the purpose of filling casual vacancies at a later stage. It has nothing to do with the inauguration of the elected members of a new legislature.
The MK party project of sneaking Hlophe into Parliament along this route has failed to take three statutory hurdles: first, the party cannot substitute any of its designated candidates with Hlophe because he was not elected; secondly, should a vacancy arise during the course of the legislative term, the person next on the party’s list that was submitted for the elections, fills the vacancy, but there is no casual vacancy; and thirdly, the list could only be supplemented once the party’s list of candidates that was submitted for the election, has been depleted.
Read more in Daily Maverick: New MPs – Impeached Judge Hlophe, other MK Party members and ANC’s Kodwa sworn in
The practice of artificially depleting the list of candidates is certainly illegal and unconstitutional.
The gravest transgression, however, is that the party functionaries have usurped a function of the Electoral Commission. In terms of item 14, it falls in the exclusive power of the IEC to designate elected members of Parliament. Only the IEC can change the list in terms of its powers under item 14, for example, if one of the listed persons would suddenly have died between the time of his/her designation and being inaugurated.
Strictly speaking, the actions of the MK party boil down to “candidate-rigging” (for lack of a better word).
IEC responsibilities
It would therefore be sensible to examine the duties of the IEC in this regard. Section 5 of the Electoral Commission Act specifies that the Commission has the power to declare the results of elections within seven days after such elections and may resolve disputes which may arise “from the organisation, administration or conducting of elections and which are of an administrative nature”.
In this case, things went so fast that the IEC was presented with a fait accompli. The commission therefore ought to challenge the legality of the inauguration of persons who were not designated by the commission as members of Parliament in terms of item 14.
This is clearly not a free and fair outcome of the election. It also infringes upon the rights of candidates in terms of section 19(3) of the Constitution, who in fact stood for office and were duly elected. Section 20(4) of the Electoral Commission Act creates jurisdiction for the Electoral Court to hear such a dispute.
Another issue is whether the candidate-rigging would also qualify as a criminal offence. Section 21(1)(a) of the Electoral Commission Act states that it is a criminal offence to wilfully hinder or obstruct the commission in the exercise of its powers or in the performance of its duties or functions. The penalty for such an offence upon conviction is a fine or imprisonment for a period not exceeding five years.
It will be up to the National Prosecuting Authority to investigate a potential criminal offence if the candidate-rigging was done wilfully. It appears that the idea to replace a designated MK party member with Hlophe stems from the party’s leader, Jacob Zuma. Maybe other persons in the party leadership were also involved. At issue will be whether they executed the candidate-rigging intentionally.
What could tip the scales is that there had been talk of MK filling its benches with an “all-star team of alleged State Capturers” from the Zuma era: Prasa’s Lucky Montana, Transnet’s Siyabonga Gama, Eskom’s Brian Molefe.
After it was reported that MK’s chief negotiators post-elections were Tom Moyane, the man accused of almost collapsing SARS, and firepool Minister Nathi Nhleko, it seemed eminently possible that the Montanas, Gamas and Molefes would be sworn in as MPs. But in the end, they were not. It was unclear until the very last minute exactly who would be showing up for MK.
What it shows, however, is that the MK Party has little respect for electoral law. Its flimsy vote-rigging accusations also bear testimony to that.
It is not clear how far former Judge John Hlope was involved in the planning of this disgraceful episode. As a seasoned former judge president with many years of legal experience, he surely must have noted that the Electoral Act does not provide for the substitution of designated members of Parliament with somebody who did not stand for election.
It is also clear from the applicable provisions that only casual vacancies could be filled from a supplementary list once such a candidate list has been depleted. There was neither a casual vacancy, nor a depleted candidate list.
Much will depend on the Independent Electoral Commission if it should remain an independent overseer of elections and a credible defender of free and fair elections. It will fail the electorate if it does not take action to rectify the infringement upon its powers and to protect the rights of duly elected candidates. DM