Amending constitution to postpone elections not practical, IEC tells parliament

The Electoral Commission of SA (IEC) says while it seeks to postpone the local government elections as recommended by former deputy chief justice Dikgang Moseneke, amending the constitution is an impractical solution.  

Moseneke ruled that if elections were to be free and fair under Covid-19 conditions, they would have to be held no later than February 2022, instead of October this year. He cited health risks associated with Covid-19, and limitations on gatherings among other reasons. 

The constitution stipulates that when the five-year term of a municipal council expires, an election must be held within 90 days of the date on which that council’s term expired. The current term expires in August with the 90 days lapsing in November. 

The postponement of elections can only happen in two ways: either through an amendment of the constitution, which could take months and require the support of a vast majority of the National Assembly members; or the IEC can approach the Constitutional Court and get it to extend the terms of the municipalities. However, the constitution prohibits this. The IEC is exploring the latter.

“We believe that we are dealing with a short-term challenge and a short-term challenge should not really lead us with ease to amend the constitution. It was an option but it appears to the commission that it's an option that at this stage is impractical, given the timeline,” said IEC CEO Sy Mamabolo.

“We are going to need 75% approval in the National Assembly, publish for public comment, then it has to go to the National Council of Provinces (NCOP) and in this case, you are going to need the support of six provinces. In the time available, it appears to the commission that it is an impractical option at this stage.”

Mamabolo made the remarks to parliament's portfolio committee on home affairs on Friday.

Members raised a variety of concerns after the commission's decision to adopt Moseneke's report. 

MPs against Moseneke's report said the IEC was seemingly retreating in the face of the pandemic when other African countries have had elections. However, IEC commissioner Mosotho Moepya cautioned against making comparisons.

“The difference between those countries and our country is simply boiling down to the constitutional architecture of our constitutional framework. In SA, elections must be both regular and free and fair. That is the challenge we face and that is why it is important for us to deal with these elections very carefully,” he said.

The IEC delegation confirmed it had resorted to approaching the highest court in the land in its bid to postpone the election, saying its decision would provide finality and clarity on the matter. Despite this, the IEC has forged ahead with its other programmes, including online voter registration.

MPs questioned this, suggesting the commission should have waited for finality on the matter.

Responding, Moepya said: “Though we are approaching the courts, we do not know what remedies we will be granted. We are very clear in what we're going to request from the court but in the meantime, the things we ought to do, we must do.”

IEC deputy CEO Masego Sheburi expressed similar sentiments, adding that online registrations were by no means a replacement of traditional voting measures.

“The online registration facility is not intended to replace existing registration modalities of face to face or voting station-based. It is in addition to those modalities. As we speak, by yesterday, we had activity of about 33,100 people who had applied to register using the platform.”  

The majority of those who had registered were from Gauteng, the Western Cape, Eastern Cape and Limpopo.       

On uncertainty on the trajectory of the pandemic, Moepya said the commission was in a difficult position. 

“The pandemic has created uncertainty even at a scientific level and our constitutional obligations are very clear and non-negotiable. 

“The challenges we face persist in that there will not be a period in the foreseeable future where we do not have infections.”   

After Moseneke's report, the EFF sought to propose an emergency convening of the National Assembly to pass an urgent motion to amend the constitution to allow for the postponement of elections beyond the established five-year term of municipal councils, and beyond the 90-day deadline that would require elections in November.   

The DA said it would study the Moseneke report in light of its constitutional implications and communicate its next steps. The party did not rule out the possibility of legal action.

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