Polls in a pandemic: Sluggish vaccinations raise the spectre of delay as a last resort

It’s a carefully phrased argument Cosatu presented to Dikgang Moseneke, the retired deputy chief justice heading the inquiry into free and fair elections during Covid-19.

The trade union federation’s first choice would be to hold the municipal poll as scheduled in late October 2021. But if health and safety make this impossible — and it is science and medicine, not political parties that determine this, Cosatu emphasises — a backup plan is necessary.

That Option B is for the Electoral Commission of South Africa (IEC) to apply to the Constitutional Court for a once-off strictly delineated postponement to some time in the first three months of 2022, most likely February/March. 

Such a postponement would be in line with the constitutional imperative of preserving life, particularly as the roll-out of the Covid-19 vaccines has been so slow and obstacle-ridden that it has seen fewer than 5% of the population inoculated to date, rising to between 25% to 30% by end of October. 

It’s nowhere near the 67% inoculation level needed for immunity that would ensure people were not too afraid to cast their ballots, possibly leading to minuscule voter turnouts that would undermine the poll’s credibility. Hence the consideration for a postponement of the 2021 local government elections to February/March 2022 by when population immunity might have been reached.

“A big enough delay to allow the vaccine roll-out to take place, not too long for incompetent councillors to remain in office,” is how Cosatu parliamentary liaison officer Matthew Parks explained it to Moseneke during Tuesday’s live-streamed proceedings.

“If you postpone it once, you cannot postpone it again. That’s sacrosanct... We are confident, despite all the gremlins (in the vaccine roll-out), we will reach 67% immunity by Christmas.”

Precedence exists for a limited postponement. The 1 November 1995 municipal poll in the Western Cape was delayed to 29 May 1996 over various demarcation disputes around what was ultimately to become the Cape Town metro.

The 1995 local government election was also postponed, to 26 June 1996, in KwaZulu-Natal over demarcation disputes, but the impact of political violence also played a role.

In 2020, all by-elections were postponed during the lockdown to save lives. The constitutional requirement, principles and legal necessities for by-elections are the same for the local government poll.

“It’s a difficult one,” acknowledged Parks. “The IEC struggles in informal areas and townships. There are always long queues, the zip-zip machines run out of batteries… There’s always a story. How will it be in a pandemic when the smallest mistake puts lives at risk?”

It’s a difficult place — not just for the IEC, but South Africa — where systems of governance seem to be slowly eroding under the stress of an almost 16-month State of Disaster and uninterrupted Covid-19 lockdown that on Wednesday marks Day 462.

Section 159 of the Constitution states “the term of a municipal council may be no more than five years”. It also sets a 90-day window on either side of the last poll for the next elections. 

That window is 4 August to 1 November 2021 for this year’s local government elections. The scheduled 27 October date is already quite far into this constitutional window. It’s understood much of the IEC planning is based on Level 1 Covid-19 lockdown restrictions.

The reality is that time’s just not there for a constitutional amendment. Even when all lawmakers agreed it was time to abolish floor-crossing, or the taking along of one’s legislature or council seat when joining another political party, it took eight months to process this constitutional amendment.

Four months are left to the scheduled 27 October local government date.

Approaching the Constitutional Court at this point to request condonation of a postponement may be an option, particularly given the 1996 precedents. But that won’t happen until after 21 July, the date Moseneke indicated in his report on whether free and fair elections were possible in the Covid-19 pandemic.

“Justice Moseneke will undertake an urgent appraisal of all the relevant legal, socio-political, health, practical and other considerations and submit a report… (that) may also make recommendations of additional measures to further fortify the integrity and safety of the elections,” was how the IEC put it when it announced the inquiry in May.

While the IEC says it is ready, prepped and able to conduct the October 2021 local government elections, South Africa is not an exception in trying to get to grips with Covid-19 and democratic cornerstones such as elections. 

In August 2020, New Zealand delayed its national elections by a month to 17 October 2020 after large parts of the county were put under a strict Covid-19 lockdown. 

Between 21 February 2020 and 21 June 2020, at least 41 countries worldwide had postponed national elections, and 37 more postponed subnational polls, but 125 countries and territories decided to go ahead, according to the International Institute for Democracy and Electoral Assistance (International IDEA).

Within this period, at least 55 of the countries and territories that initially postponed national polls and/or referendums, proceeded to hold them.

In South Africa, the EFF has long agitated for a delay in the municipal poll, even meeting the ANC in 2020 to gain support for this delay — and merging all elections to the same day. 

Its argument is that the elections won’t be free and fair given the Covid-19 lockdown restrictions on electioneering, such as door-to-door campaigns, community meetings and rallies.

The Electoral Institute for Sustainable Democracy in Africa (Eisa) argued in its written submissions that the IEC had to consider both the health and political rights of voters.