Terence Corrigan.
A once-in-a-generation event, the Covid-19 pandemic shook the world in 2020. The world is still reeling from it. Beyond the enormous health threat that it posed and the associated economic damage – in South Africa these effects have been counted in tens of thousands of lives and the sharpest economic contraction in the country’s history – it posed a major threat to democratic governance and civic liberty.
For South Africa, this is a matter of immediate and pressing concern. As you read this, the Constitutional Court will be considering arguments around the postponement of the municipal elections that, in accordance with existing constitutional stipulations, was scheduled for October.
It is important to understand just what this means. Elections are definitive, keystone events of any democracy, for reasons that are at once symbolic and substantive. They are the moments at which a society can render judgement on the performance of its leaders and its political class and punish those whose performance has been lacking. Since the 1990s, elections have become a near universal phenomenon.
However, while elections are commonplace throughout the world, their quality is uneven. It is far from uncommon for dishonest politicians and corrupt governments to manipulate them, to claim the mantle of legitimacy that they confer but without risking the corresponding accountability. This may not mean rigging elections, but skewing their conduct to give incumbents an advantage over their challengers.
Correctly, the Covid pandemic was recognised in many quarters as representing a profound challenge to democracy. A real threat, it stood to provide cover for governments seeking to curtail freedoms. Those fearing unfavourable electoral outcomes might point to the health risks to put off voting.
As the pandemic gained momentum, Freedom House – a venerable and highly respected US-based NGO – put together a set of recommendations for the maintenance of civil and political rights. These dealt with the communication of regulations, the management of emergency measures, control of surveillance, support for a free media and the ongoing holding of elections. The last point is worth quoting in full: ‘Every feasible step should be taken to protect the administration of free and fair elections, including by adjusting voter-registration rules and polling-station procedures, encouraging early voting, and allowing vote-by-mail or other remote voting procedures where their integrity can be assured. Postponement of elections should only be a last resort, and should be supported by law and a broad consensus among political forces and independent experts.’
South Africa’s elections
Arguably the most powerful and effective overall safeguard for electoral integrity is a strong constitutional framework: one the sets out clear rules for how elections should be conducted. At a minimum, this signals to all stakeholders a clear context within which to structure their efforts.
Constitutionally, South Africa’s municipal elections must take place within 90 days of the expiry of councils’ terms. This would mean by 1 November this year. To delay them any further would be to violate Section 159 of the Constitution.
However, concerns about Covid-19 have intervened. A report produced in July by former deputy Chief justice Dikgang Moseneke and adopted by the Electoral Commission recommended postponement – a proposition that is obviously constitutionally impermissible. Following the report’s advice, the proposal is to aim to hold the election early in the new year.
And so, with more than a touch of irony, the Constitutional Court is being asked to sanction discounting provisions of the document over which it is the supreme guardian.
Holding an election amid a pandemic carries risks. This is true, but is by no means a convincing argument for postponement. After all, much has been made of how the pandemic has created a ‘new normal’ to which the world must adjust. South Africans have had to adapt their lives to the risks posed by the pandemic. South Africans queue for social grants and for government services. They shop in busy centres. They travel in taxis. They attend religious services. Each of these poses risks, but facing them is the necessary price of carrying on with life.
Life continues
There is, for better or worse, no option of remaining in some form of isolated stasis as we await the passing of the pandemic.
This applies as much to our political processes as it does to our economic or social or cultural lives. Yes, it will require adaptation, but dozens of countries – both developed and developing – have successfully managed to do so. Just last week, for example, Zambia held an election that saw the incumbent defeated, and accept the outcome. (As an aside, one wonders how the postponement of last year’s US election would have been received…)
There is also a profound danger in deferring our democratic processes because other challenges exist. There is no guarantee that better circumstances will exist next February, and we might be setting in motion a progression of delays that would coordinate well with the fundamentally political goal of combining national, provincial and municipal elections.
Indeed, having put off an election because of a public health threat, a perilous precedent would have been set. Emergencies, whether real, perceived or contrived, could be strategically invoked to reschedule elections for the convenience of incumbents. Right now, one might ask whether the ANC is comfortable facing the electorate.
If these concerns appear overblown or even fanciful, it may be well to remember that South Africa’s trajectory over the past decade should have imbued us with a deep scepticism of the motives and probity of our political class. Even more than the monumental corruption, the fact that our President could happily discuss how the ruling party tried to influence the appointment of judges should illustrate just how persistent these dangers are. Gifting electoral postponements would be ill-advised, to say the least.
The Institute of Race Relations is joining the challenge to the postponement as amicus curiae. The election must be held on schedule – or as near to it as possible – with appropriate measures to mitigate the health risks. The path proposed would undermine the integrity of our elections, now and into the future. The consequences of this are a risk far too dire to be taken.
Terence Corrigan is a project manager at the Institute of Race Relations.
