This is why the local polls absolutely have to go ahead in October: DA

The DA has applied to be joined to the Electoral Commission of SA’s (IEC) application to the Constitutional Court, in which it seeks a postponement of the October local government election to February 2022.

“We are joining the application to strongly oppose it and to give our reasons for doing so, which are rooted in SA’s constitution. None of the IEC’s reasons pass muster and hold water,” said DA federal council chairperson Helen Zille during a virtual briefing on Wednesday.

“There is no reason for the IEC to ask the Constitutional Court to help it violate the constitution, because that is indeed what it’s doing.”

In its submission to the court, the DA said it made a case that not only could an election “logistically” be held in October when the peak of the Covid-19 infections would be over, but that it would be unconstitutional to try to postpone the election, as that would require an amendment to the constitution, or its suspension.

“If the Constitutional Court were to help either suspend or amend the constitution, it would create a fundamental constitutional crisis because the Constitutional Court would put itself above the constitution and set a precedent that in future could lead to a small number of people in the Constitutional Court unilaterally amending the constitution as and when they see fit, which cannot possibly be right,” said Zille.

She said the DA was an interested and affected party, and therefore entitled to join the IEC’s application.

Adv Werner Horn, who drafted the DA’s papers filed to the Constitutional Court, said the party’s key submissions would address, among others, the underlying argument of the IEC that based on the Moseneke report it would be impossible for the commission to hold the elections.

In his inquiry, former deputy chief justice Dikgang Moseneke recommended that elections be postponed to no later than February 2022 if they were to be free and fair.

“In our submission, we will point out that unfortunately the Moseneke report by and large cherry-picked the portions of scientific data and advice put in front of it, which suited the argument for a postponement,” Horn said.

He said it was clear that the risks that would be associated with the February election date were “unpredictable”.

“We will also in our submission deal with the argument that larger amounts of vaccinations could lead to lower risk of infections. We will also point out that other scientists have already indicated that community immunity, in all likelihood, will not be reached by February.”

He said the DA was of the view that the commission should have considered opting to ask for an order that either the proclamation be set aside or redone on a later date that would facilitate voter registration in the meantime.

The DA would also ask the court to direct the commission to facilitate voter registration at a date earlier than September.

“Though the IEC could have met the benchmark for a free, fair and safe election within the stipulated time frames, it failed to do so and is now effectively forcing the court’s hand by saying it cannot meet the conditions for a free, fair and safe election in time,” Zille said.

She said the electoral body’s application failed to address the fundamental question of how it could be expected of the court to assist the commission “in the face of the foundational and unambiguous constitutional and legal requirement to have elections on or before November 1 2021”.

Zille said while it was difficult to hold an election under Covid-19 conditions, it was the IEC’s duty to do so as scores of countries had done during the pandemic.

“From February 2020 to July 21 2021, at least 128 countries and territories have decided to hold national or subnational elections, of which at least 107 have held national elections or referendums,” she said.

“The IEC has not made out a case to justify the drastic step of a postponement.

“There is no evidence that elections cause a spike in infections, when proper protocols are applied. The two exceptions have been India and the US, where it has been established that large rallies were super-spreaders.

“Our suggestion is that the court, instead of changing or suspending the constitution, recommend the suspension of section 6(1) of the Municipal Electoral Act, which stipulates that the voters’ roll must close on the date of the proclamation of the election.

“Alternatively, the court could set aside the proclamation, enabling a new timetable to be set up, leading up to an October election.”

South Africans, Zille said, had been living under “draconian” disaster management legislation for almost 18 months, which had eroded some of the most fundamental constitutional freedoms, including of movement, assembly and speech.

“All power is concentrated in the national command council, with cascading command councils that have the power to bypass constitutional institutions to issue ‘commands’ in governing the country. This holds profound dangers of undermining democracy, especially as the mutating virus will be with us for a long time.

“Now, over and above this, the proposal is to postpone elections — which will clearly not be able to be held if the country is once more at the peak of an infection wave in February 2022.”