The Future of South Africa

A truly independent IEC is democracy’s last line of defence

  • Mmusi Maimane
The one institution of democracy that has, until now, escaped President Jacob Zuma’s capture of state institutions and enterprises is the Electoral Commission of South Africa (IEC). The value of a neutral, non-partisan electoral watchdog cannot be overstated. If the IEC falls into the hands of an unethical and threatened president, it can spell disaster for our democracy. The warning signs are there, and they need to be heeded.

South Africans have spent a lot of time recently talking about the threat posed by the capture of state institutions and enterprises by President Jacob Zuma. The Presidency’s extraordinary powers of appointment, along with a blindly loyal parliamentary caucus, has enabled Zuma to place dutiful cadres at the helm of a staggering number of influential bodies. Although these presidential appointments are in line with the Constitution, the writers of our Constitution could not have foreseen this abuse of power 20 years ago. They could not have foreseen that a compromised president like Zuma would one day use the full extent of these powers to secure his power, capture the state and shield himself from the law.

When discussing this systemic state capture, most of the attention has been on the institutions of investigation and prosecution, where we now see Zuma loyalists heading up, amongst others, the National Prosecuting Authority, the Special Investigating Unit, the South African Police Service, the Hawks and the South African Revenue Service. In fact, all that still stands in the way of a full house of state-captured investigative and prosecutorial institutions is the Office of the Public Protector, where advocate Thuli Madonsela is proving to be a more stubborn thorn in the flesh than anyone could have predicted. But her term of office ends next year, and the chances of the president making the same mistake again are slim.

The one institution of democracy that has, until now, escaped the same kind of scrutiny is the IEC. The value of a neutral, non-partisan electoral watchdog cannot be overstated. If the IEC falls into the hands of an unethical and threatened president, it can spell disaster for our democracy. The warning signs are there, and they need to be heeded.

The task of the IEC is to deliver regular, free and fair elections at all three levels of government. To date, it has overseen five national and provincial elections and four local government elections. All of these elections were officially declared free and fair by the IEC with no substantial accusations of vote-rigging or other irregularities (although it must be added that last year there were 250 complaints lodged).

But these elections all took place during a time when the African National Congress (ANC) felt their national lead wasn’t threatened, and electoral manipulation was never deemed necessary.

The first time the ANC was handed a notable electoral defeat was in 2006, when they lost control of the City of Cape Town to a coalition led by the Democratic Alliance (DA). They didn’t respond well to this and tried everything in their power – legal and otherwise – to break up the coalition. It was only through court action that these efforts were finally thwarted. Three years later, in 2009, they lost the Western Cape when the DA won 51.5% of the provincial vote for an outright victory. This has never sat well with the ANC, but instead of mounting an effective opposition strategy, they have banked on supporting an ‘ungovernability campaign’ in an attempt to destabilise the Western Cape.

But fast-forward another five years to after the 2014 national and provincial elections, and the whole picture changes. Suddenly the ANC finds itself staring down the barrel as their once-unassailable lead in several key metros has dramatically shrunk. As Nelson Mandela Bay, Tshwane and Johannesburg voters turn their backs on the ANC in their numbers, the prospect of losing one or more of these metros in the 2016 local government election looms large. And it is at this point that we must open our eyes wide and keep them trained on the IEC. Because this is where the ANC’s last hope of swinging an unfavourable result lies.

The IEC is headed up by five commissioners. One of them serves as a vice-chairperson and one as chairperson. Currently four of these five positions are filled, and the recruitment process for the fifth is under way. Once he or she is appointed, the new IEC chairperson will be announced. (The previous IEC chairperson, Pansy Tlakula, was forced to resign in September last year following a property leasing scandal).

It goes without saying that the impartiality of these commissioners should be beyond reproach, but this was called into question in March this year when the ANC used their majority in the portfolio committee for Home Affairs in the National Assembly to push through the nomination of Glenton Vuma Mashinini as an IEC commissioner. Mashinini’s fortunes have been closely tied to that of Zuma for more than five years now. From 2010 to 2012 he served as vice-chairman of the president’s review commission on state-owned enterprises, and then from 2012 till 2015 he was appointed full-time adviser to the president on ‘special projects’. He has been earning a top salary for over five years, courtesy of Zuma, and yet we are now expected to believe that his impartiality is not in question.

But it is not only at the level of IEC commissioner that the independence of the institution warrants scrutiny. At every voting station, the last line of defence in securing a free and fair election is the presiding officer. At the thousands of schools where voting takes place, these presiding officers are often principals and deputy principals. And, more often than not, they are members of the South African Democratic Teachers’ Union. Considering the amount of pro-ANC campaigning all the Congress of South African Trade Unions affiliates undertake during each election, this cannot be a healthy situation for our democracy.

When it comes to contesting elections in South Africa, opposition parties do not compete on a level playing field with the ANC. The capture of the SABC has effectively turned the state broadcaster into an ANC mouthpiece during election campaigns, and the allocation of party exposure is skewed in the ruling party’s favour. On top of this, the ANC uses election campaign periods to dramatically ramp up its food parcel handouts in contested areas – in other words, ANC-branded gifts for the bill of the taxpayer.

Then there is the issue of the municipal boundary manipulation to ensure maximum support (or weakening of the opposition). It’s such an old trick in the book, it has its own name: gerrymandering. The Municipal Demarcation Board’s recent decision to proceed with all its proposed outer boundary demarcations, in contravention of due process (and effectively ignoring all objections), places a big question mark over the board’s independence and freedom from political manipulation. The DA will make an application to the High Court to challenge these decisions.

In the face of these enormous challenges, it is absolutely crucial that our electoral watchdog, the IEC, is beyond reproach. Simply pointing to the Electoral Court as recourse in case of a dispute is not good enough, as we recently saw in the Tlokwe by-election court case. Earlier this year the Electoral Court upheld the election of several ANC ward councillors in the contentious 2013 by-elections in Tlokwe after allegations of voter-roll manipulation. The Electoral Court’s majority decision found that the number of bused-in (ie illegally registered) voters was “only” 1,040 and had no material impact on the outcome.

However, this was disputed in the minority judgment by Judge Lotter Wepener, who argued that there was enough evidence to set aside the election results. In his judgment he said: “In all the circumstances, I am of the view that the by-elections were not free and fair and were tainted by illegality, and that the votes cast at voting stations of the relevant wards in the by-elections should be ordered not to count.”

Without an independent electoral watchdog it is virtually impossible for governments to change hands peacefully. Africa is littered with examples of disputed elections and questionable governments because of the lack of electoral oversight. We only need to cast our minds back to the 2002 elections in Zimbabwe – an election that we now know was everything but free and fair thanks to the Khampepe Report finally seeing the light 12 years later. For more than a decade our government tried to prevent this report – by two of our most esteemed legal minds – from being made public because it was diplomatically awkward. But the truth will always out.

So is there anything we can do to ensure that our elections remain free and fair?

There most certainly is. In general, we must all remain vigilant and report any incidents we believe to be improper. Safeguarding our democracy is everyone’s responsibility. We must also welcome international observers. With so much at stake, you can never have too many eyes watching the process and looking out for irregularities.

But on a more practical level, we must ensure the independence of the IEC by firewalling it from cadre deployment. The DA believes that the Home Affairs portfolio committee should continue to shortlist and nominate IEC commissioner candidates. But we also believe that the portfolio committee’s recommendation should have the backing of at least 60% of the members of the National Assembly before being sent to the president. This would be in line with the appointment process of the public protector and the auditor-general, and would prevent the ANC from using their majority in the House to push through compromised nominations.

Next year’s local government elections could be a watershed moment in South African politics. If the ANC loses control of any more metros, the resultant swing in momentum could put 2019’s national and provincial elections in the balance. We know it. The ANC knows it. And we cannot afford to take any chances when it comes to securing the legitimacy of these results. DM

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