Postponing South Africa’s municipal polls: What the Constitutional Court must decide

Elmien du Plessis is Associate Professor of Law at North-West University; Petronell Kruger is Senior Researcher, public health law, University of the Witwatersrand; Safura Abdool Karim is a senior researcher at the University of the Witwatersrand.

President Cyril Ramaphosa gave almost six months’ notice by announcing 27 October 2021 as the date for the elections on 21 April 2021. The Constitution requires that an election be held within 90 days of the end of the term of office for local government. Since the last local government elections were held on 3 August 2016, an election must be held by 1 November 2021 to comply. No provision is made for discretion to postpone the elections in the Constitution or in legislation.

But, as the Electoral Commission of South Africa started preparing for elections, some political parties flagged the challenges of holding elections during the Covid-19 pandemic. The commission then constituted an inquiry, headed by former deputy chief justice Dikgang Moseneke, to ascertain if the elections would be free and fair if held in October.

The inquiry found that there was a possibility that elections in October might not be free and fair. It suggested they be postponed to February 2022. Based on this report, the electoral commission applied to the Constitutional Court to have the elections postponed. The judgement is expected soon.

The challenges facing the electoral commission were highlighted in a submission we made to the inquiry. The task facing the court is to first determine if the elections will be free and fair if held in October. If it finds not, then it must decide whether it has the authority to postpone the elections.

The right to vote

The right to vote is a right that underpins South Africa’s democracy. It is also a founding provision of the Constitution. The Constitutional Court has reiterated on many occasions the importance of this right. It has indicated that the right to vote is linked to the realisation and protection of other rights, including the right to dignity. Therefore, the right itself protects more than just the act of voting.

It is linked to the general right to free and fair elections. The state is obliged to fulfil the right. In terms of sections 181 and 190 of the Constitution, read with the Electoral Commission Act, the electoral commission must ensure this.

The principles of freeness and fairness do not only pertain to the workings of the commission. The right to free and fair elections may, for instance, also be undermined where political parties are being treated unfairly or if they cannot campaign due to restrictions by the state.

So, what is at stake is the individual’s right to vote, and the right to free and fair elections. In this context, the electoral commission, and now the Constitutional Court, must look at the risks the Covid-19 pandemic poses, and consider if elections can be free and fair.

Voting day

We made a submission to the inquiry in June 2021 on the various measures that can be taken to lessen the spread of Covid-19 during the election.

In our report, we allude to the measures other countries took to lessen the spread of Covid-19 during elections. Firstly, there were various special voting arrangements, such as early voting, postal voting, proxy voting, and home and institution-based voting.

Countries like Lithuania and the Czech Republic even had “drive-by” voting stations for people in quarantine. Israel established dedicated polling stations for quarantined voters.

While not all of these suggestions can be transplanted to South Africa, it does indicate that “out-of-the-box” solutions are possible.

Secondly, the World Health Organization provides guidance on how to conduct elections during the pandemic, such as physical distancing, mask-wearing and hand sanitising.

Campaign

The right to free and fair elections includes enabling parties to campaign to inform the electorate of their candidates, and to do general voter education. The Constitutional Court has drawn the link between the right to vote and the right of access to information.

Campaigning is therefore an integral part of the right to vote, and to free and fair elections. Campaigning activities can be challenging during Covid-19. Restrictions promulgated to deal with the pandemic might unduly limit the right to free and fair elections.

While it is imperative that political parties adapt the way they campaign, limiting campaigning to digital or telephonic options may disadvantage people who do not have easy access to these options.

Methods of campaigning in a Covid-19-compliant way include:

• Only permitting outdoor campaign events;


• Requiring screening;


• Ensuring that there is enough space to implement physical distancing;


• Ensuring enforcement of non-pharmaceutical interventions (mask, sanitiser); and


• Recommending that vulnerable people don’t attend these events.