Quite frankly, the legal battle between the IEC and the MK Party is endangering the upcoming poll.
An independent electoral commission cannot, on the eve of election, be so eager to disqualify a candidate of a party that it may give an impression of lack of impartiality.
The establishment of an electoral court was meant exactly to discourage parties to litigate randomly outside the confines of this court. It was set up precisely to avoid undue litigation and delays that may affect the electoral timetable. If this court was not set up, tons of disputes that emerge as a result of an election could be stuck in the cover roll of normal courts and not be resolved in time to meet the stringent demands of the electoral timetable. That court has a status equal to the Supreme Court of Appeal and there is good reason. It has up to five judges to make sure that its decisions can be easily respected by warring factions.
Given this mechanism initiated and put in place at the insistence of the IEC, it is particularly strange that the IEC rushed to appeal a judgment of this most relevant court where elections are concerned. What is worse is that they made such a determination before the reasons for the judgment were made public. So the claim of seeking certainty when you have no idea what the court has laid out as its reasons is, quite frankly, a huge red flag that suggests that the decision was not rational or in the extreme worst alternative, was made for the IEC by external influences, possibly with either commercial or political motives, that have something to lose over former president Jacob Zuma’s candidacy.
If this is not the making of a constitutional crisis, what is?
A lot of people were surprised by the decision from a layman's interpretation of Zuma’s situation and would probably not mind such a decision being appealed. However, is the IEC the right body to appeal such a politically charged decision? The IEC was not the party that objected to the candidacy of Zuma, despite that they had every right to do so. The appeal raises a fed flag of a glaring bias that suggests an ill motive.
This action seems to be thoroughly ill-conceived and could plunge the country into a constitutional crisis or alternatively have a potential of causing the elections to be postponed given the nature of ConCourt cases that must be deliberated on by 11 judges. The reason the court issued its judgment without being ready with written reasons was meant, I imagine, to allow the IEC to get to the business of preparing for the poll without further delay. The IEC knows this as it is what they pleaded in their papers as an attempt to pressure the court, not to cause any needless delay.
The IEC decision also has one more complication — the apex court will have to recuse Zondo from the case as he will be immediately conflicted. The rest of the court will also have a dilemma in that they passed the much-contested sentence on Zuma.
Do they now take a decision that undermines their 15-month jail sentence? Will they be an objective arbiter when the outcome of their decision now will reflect badly on the court decision made earlier and how it was possibly undermined by the president’s remission decision that effectively curtailed Zuma’s sentence? If this is not the making of a constitutional crisis, what is?
All of this is besides the possible social unrest that could result if there were to be an unfavourable decision over the Zuma matter after the impression given by the electoral court that that hurdle had been successfully cleared. The riots following Zuma’s imprisonment in 2021 may well be a picnic in comparison. Surely the IEC legal advisers are aware of this. Even if you were not to consider the possible civil unrest that might possibly follow this conundrum, it is clear that by the IEC entering the fray, there is a huge possibility of such an action poisoning the electoral environment. A false impression that the IEC is invested in a particular outcome may be wrongly or rightly created.
It is not too late for the IEC to revise this ill-considered decision. The ConCourt dilemma has already been expressed in that court's previous judgment against Zuma stating that was a unique case that won't result in a normal judgment. With all this information at its disposal, why is the IEC testing fate and in the process endangering an election as historical as the May 29 poll?
— Prof JJ Tabane is anchor of Power to Truth on eNCA and Editor of Leadership Magazine.
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