On the other hand, the country is battling with 16 240 new daily COVID-19 infections (as at 21 July 2021) and 516 daily deaths as the third wave rages on. Out of a population of almost 60.1 million, only 5 831 389 vaccines have been administered as at 21 July 2021. The delta variant of COVID-19 has resulted in a higher number of people experiencing more severe symptoms, being hospitalised and dying, and there are calls to adhere to adjusted Alert Level 4 of the Lockdown to reduce the risk of transmission, and vaccination to increase community immunity (what some have called "herd immunity").

The IEC appointed former Deputy Chief Justice Moseneke and his team to investigate and report on "the likelihood or otherwise that a pending election will be free and fair" taking into account the COVID-19 pandemic.  This article provides a synopsis of the report of the Inquiry. The IEC and the Minister of Cooperative Government and Traditional Affairs (COGTA) must tread carefully to reach a decision on when elections will take place, without risking mass infections or ‘invalid’ conduct. I mention the Minister here because it is the responsibility of the Minister of COGTA after consultation with the IEC to set a date for the local government elections in terms of section 24(2) of the Municipal Structures Act.

How did the Moseneke Inquiry approach this investigation?

The Inquiry took an objective approach to the investigation. The Inquiry invited inputs from various stakeholders including technical experts, political parties, civil society and the general public. Considerations of important constitutional values of democracy and human rights, such as the right to life, bodily and psychological integrity and access to healthcare were taken into account. Although the views of political parties and the general public were quite divided, the report notes that the Inquiry took into account all the oral and other submissions. It also examined relevant law and drew examples from the Region (including the African Commission on Human and People’s Rights’ statement on Elections in Africa during the COVID-19 pandemic published 22 July 2020) and beyond. I provide here a brief synopsis of the responses to the questions addressed by the Moseneke Inquiry’s Report.

Question 1: May local government elections be postponed?

The Inquiry emphasised the importance of section 1(9) of the Constitution which guarantees universal suffrage (the right to vote) and regular elections. Although the term "regular" is not specifically defined (and neither was it the Inquiry’s mandate to define it), the Inquiry relied on the strict provisions of section 159(1) of the Constitution which limits the term of municipal councils to 5 years and requires elections to be held within 90 days after the expiry of the 5-year term. The elections must not only be "regular", but they must also be "free and fair". Democracy would be compromised if either one is missing. In order to diverge from the provisions of section 159(2), which the Inquiry deems go to the core of section 1(9), a special procedure for amendment must be followed because section 1(9) is specially entrenched, meaning it has stronger protection than other constitutional provisions. In other words, should Parliament choose to amend section 1(9), this must be done with a 75 percent majority vote in the National Assembly, coupled with the supporting vote of at least 6 of the 9 provinces in the National Council of Provinces (see section 74(1)(a) and (b) of the Constitution).

The Moseneke Inquiry, finding that it may be untenable to amend the Constitution for temporary relief, suggests an alternative, which is for the IEC to approach a competent court and seek extension or relaxation of the fixed terms of current municipal councils until a possible election date at a time after February 2022.

In an interview, Professor Jaap De Visser, Director of the Dullah Omar Institute for Constitutional Law, Governance and Human Rights, noted that formally, the duty to make such a court application would not fall on the IEC, but rather on the Minister of COGTA who has the responsibility to call the election before the end of October (section 24(2) Municipal Structures Act). He noted that although we have the Electoral Court (which is a specialised court on matters pertaining to elections, but has the status of a High Court), it is likely that the Minister might make an application for direct access to the Constitutional Court. De Visser notes further that the Minister would have to argue that if we were to hold elections in October, those elections would not be free and fair and would, therefore, not actually produce a  credible result, and in the words of Moseneke, would be a "nullity'’. He however stated that it is unusual for the Constitutional Court to override or suspend provisions of the Constitution because the Constitutional Court is designed to uphold the provisions of the Constitution. Hence, in his view, this approach would be quite exceptional.

Prof Pierre De Vos, Claude Leon Foundation Chair in Constitutional Governance at the University of Cape Town argues that amending the Constitution is not a good choice either because there is not enough time for processes of public participation, and a constitutional amendment of this nature, if not drafted well, can create loopholes for any future undemocratic government to undermine the democratic process.

Question 2: Would local government elections in October 2021 be free and fair?

The Inquiry found that the elections in October 2021 are not likely to be free and fair, but they are likely to be free and fair if they are held not later than the end of February 2022. The reasons follow.

1. The election timetable of the IEC

The Inquiry notes that section 11 and Schedule 3 of the Municipal Electoral Act 27 of 2000 requires that when the Minister of COGTA has called an election, the IEC must prepare a timetable for the election, setting dates for various activities, including voter registration. This timetable must be followed strictly, although the IEC can amend it. The draft timetable has scheduled voter registration to take place from 31 July to 01 August 2021. The voter registration period is scheduled to start only 6 days after adjusted alert level 4 restrictions come to an end (25 July 2021) and there is a possibility that these restrictions may be extended owing to the high number of COVID-19 infections and deaths. The Minister may only call the elections after the 1st of August according to the draft timetable. Therefore, if elections proceed in October 2021, there will not be enough time to allow for in-person voter registration for voters who do not have access to electronic registration, and there will not be enough time for provisional and final certification of the voter’s roll.

Further, the restrictions on gatherings may also hamper the nomination process for registered parties and independent candidates, and potentially disadvantage independent candidates, who are required to collect at least 50 signatures, as this may call for some door to door campaigning and these ‘wet’ signatures would need to be verified, which is not possible under the current restrictions and short timelines, as noted by De Visser.

2. Electoral Conduct of the IEC during the pandemic and lockdown restrictions

So far, the IEC has not conducted any by-elections during Alert levels 2 to 5, but has requested extensions and only held by-elections during Alert level 1. Since the COVID-19 pandemic started, the IEC has approached the Electoral Court eight times seeking to postpone by-elections during Alert levels 2-5, and these orders were all granted. Some of the reasons for the granting of these orders are that:

• the IEC would not have been able to conduct free and fair elections;
• the risk of spreading COVID-19 would have undermined government’s efforts to flatten the curve;
• levels 2-5 impose restrictions on gatherings, including political activities, and impose a curfew, which could adversely affect the abilities of political parties and independent candidates to campaign; and
• there may be low voter turnout as the population has become more aware of the risk of transmission, and heightened risk of hospitalisation and death that has come with the new COVID-19 variants.

The Inquiry finds these reasons justifiable. Further, the Inquiry notes that the freedom to participate in elections, which includes the "freedom to canvass, to advertise, and to engage in the activities normal for a person seeking election" is fundamental to the conduct of free and fair elections. These "normal activities" have been interpreted to include holding large political rallies, holding smaller political gatherings, and door-to-door campaigns. The concerns of the Inquiry are that the adjusted Alert level 4 COVID-19 restrictions inhibit several of these "normal activities", and this constitutes a barrier to free and fair elections and limits various rights, including the right to contest elections, campaign, and freedom of expression (see sections 19, and 16 of the Constitution and case law). Moreover, COVID-19 restrictions are likely to have a disproportionate effect on smaller, less-resourced political parties, than larger well-resourced ones. Larger parties may be able to easily shift to digital platforms and advertise widely, especially in light of the application of the proportionality principle of the Independent Communications Authority of South Africa on broadcasting opportunities. Additionally, voter education and access to information may be compromised if elections take place in October.

3. Medical and expert data and predictions

Medical experts reiterated the there is insufficient knowledge and understanding about COVID-19, but also noted that increases in the numbers of infections (such as during elections) would strain the public health sector, especially now, as not enough people have been vaccinated to establish community immunity.

4. Capacity of the health system and excess mortality

While official records state that the COVID-19 mortality rate is 58 000, the Medical Research Council records show 180 000, meaning there is almost three times as many unreported COVID-19 deaths (excess mortality) which illustrates that the situation on the ground is much worse than many would like to believe. Using data from the first, second, and third waves, health experts anticipate that most provinces will not have the capacity to deal with a fourth (or subsequent) wave, except perhaps Gauteng, Western Cape and KwaZulu Natal, which might be able to meet the minimum capacity (including public and private health care facilities). In my view, this is now uncertain in light of the unrest experienced in Gauteng and KwaZulu Natal in the first three weeks of July 2021. It would be interesting to see whether territorial differentiation could be an option when deciding on the election date in spite of the provisions of section 24(2) Municipal Structures Act which requires termination of ‘all’ municipal councils.

5. Similar trajectory of waves of infection

It is suggested that if the (anticipated) fourth wave, follows similar patterns to past waves, the trajectory is that the peak will start to decline in August and September, and October could be a period of low transmission.

6. Community Immunity and Vaccines

Assuming that the coronavirus does not change, reaching community immunity will reduce the risk of hospitalisation and death, but it is not possible for this to happen by October 2021 as the vaccination rollout is slower than anticipated.

7. Risks associated with elections

Elections carry risks of "occupational exposure for the [IEC]’s staff and campaign staff; door-to-door visits; small group meetings; large group rallies and marches; and voting day queues and polling booth risks". There is a risk of infection at gatherings and through the movement of people and likely non-adherence with COVID-19 precautions.

8. Timing: October 2021 vs February – March 2022

The experts had different views on whether to have elections in October 2021 or the February-March period of 2022. The table below summarises the views of the experts:

De Visser has commented that the fact that the scientific experts are not in agreement on this might be raised as a contestation for postponement of the elections should an application be made to court, in addition to arguments pertaining to the unpreparedness of smaller parties. He further argued that, in spite of calls to combine local elections with national and provincial elections, such an approach would take away the ‘local’ nature of local elections, which is bad for local democracy, and there would be too many ballots to fill in. 

9. Why does the Inquiry propose February 2022?

The Inquiry wants to avoid the slippery slope, by ensuring that the elections are deferred only once, and "to the earliest possible date, to be determined as the safest and shortest time within which local government elections may be held without excessive loss of life". But, this reason seems to have the opposite effect - what will happen if we find ourselves in a similar situation in March 2022. Is it not indeed a slippery slope? However, De Visser argues that this is exactly why this situation should not warrant a constitutional amendment, but rather a very ‘strict once off’ postponement.

The inquiry wants to reset municipal governance speedily. The Constitution envisages democratic, accountable government, and a fixed 5-year term for municipal councils. One of the concerns raised by stakeholders is that municipal councillors should not be given a day more than their term because citizens must be spared of "more bouts of unaccountable government, inept and dishonest financial accounting and downright failure to observe the law that governs municipalities" according to the Inquiry. The Inquiry notes that a similar sentiment has been expressed by the Auditor General, Tsakane Maluleke in the 2019-2020 audit outcomes which shows that most municipalities are in a worse state now than four years ago and that the Auditor General’s recommendations are often not taken into account. However, in spite of these considerations, the Inquiry is of the view that based on all medical evidence, numerous lives could be lost unless we reach a certain level of community immunity.

The Inquiry also took the municipal budget process into account, noting that having elections in February 2022 would give the new council an opportunity to consider the tabled budget in April 2022, and approve the annual budget before 01 July 2022 when the new financial year starts.  

Conclusion

The Moseneke Inquiry concluded that the elections if held in October 2021 are not likely to be free and fair, but they are likely to be free and fair if they are held not later than the end of February 2022. The Inquiry also made recommendations for holding free, fair and safe elections during COVID-19 and proposes that the IEC should approach a competent court for an order to defer the elections to not later than February 2022 on the terms that the court may grant. Although the findings of the Inquiry are not binding on the IEC, this is not an easy position for the IEC and the Minister of COGTA. Should the IEC apply for a postponement of the local government elections, such an application is likely to be contested by different political parties whichever approach is taken.

An analysis of the impact of the postponement of elections on municipal governance will be provided in another article of the Local Government Bulletin.

by Dr. Michelle R. Maziwisa, Postdoctoral Researcher