what the Constitutional Court must decide

The COVID-19 pandemic has affected the way elections are conducted around the world. South Africa, too, is faced with an unprecedented situation of having to decide whether or not to postpone its municipal elections, scheduled for October 27.

President Cyril Ramaphosa gave nearly six months’ notice by announcing October 27, 2021 as the election date of April 21, 2021. The constitution requires an election to take place within 90 days of the end of the local government’s term. Since the last local elections took place on August 3, 2016, an election must take place before November 1, 2021 to comply. There is no provision for postponing elections in the constitution or in legislation.

But, as South Africa’s Election Commission began to prepare for the elections, some political parties pointed to the challenges of holding elections during the COVID-19 pandemic. The commission then set up an inquiry, led by former deputy chief justice Dikgang Moseneke, to determine whether the elections would be free and fair if held in October.

The investigation revealed that the October elections may not be free and fair. She suggested that they be postponed until February 2022. Based on this report, the electoral commission asked the Constitutional Court to postpone the elections. The judgment is expected soon.

The challenges facing the Election Commission were highlighted in a submission we made to the Inquiry. The task before the court is to first determine whether the elections will be free and fair if they take place in October. If he doesn’t find it, then he has to decide if he has the power to postpone the election.

The right to vote

The right to vote is a right that underpins South African democracy. It is also a founding provision of the constitution. The Constitutional Court has repeatedly reaffirmed the importance of this right. He said the right to vote is linked to the realization and protection of other rights, including the right to dignity. Therefore, the law itself protects more than just voting.

It is linked to the general right to free and fair elections. The state is bound to respect the law. According to articles 181 and 190 of the constitution, read together with the law on the electoral commission, the electoral commission must ensure this.

The principles of freedom and fairness do not only concern the functioning of the commission. The right to free and fair elections can, for example, also be compromised when political parties are treated unfairly or if they cannot campaign due to restrictions imposed by the state.

So what is at stake is the individual’s right to vote and the right to free and fair elections. In this context, the Election Commission, and now the Constitutional Court, must examine the risks posed by the COVID-19 pandemic and determine whether the elections can be free and fair.

Voting day

We submitted a brief for investigation in June 2021 on the various measures that can be taken to reduce the spread of COVID-19 during the election.

In our report, we allude to steps taken by other countries to reduce the spread of COVID-19 during elections. First, there were various special voting modalities, such as early voting, postal voting, proxy voting, and voting at home and in institutions.

Countries like Lithuania and the Czech Republic even had drive-by polling stations for people in quarantine. Israel has set up dedicated polling stations for voters under quarantine.

Although not all of these suggestions can be transplanted to South Africa, it indicates that “out of the box” solutions are possible.

Second, the World Health Organization is providing advice on how to conduct elections during the pandemic, such as physical distancing, mask wear, and hand sanitization.

Campaign

The right to free and fair elections includes the possibility for parties to campaign to inform the electorate of their candidates and to conduct general voter education. The Constitutional Court made the link between the right to vote and the right of access to information.

Campaigning is therefore an integral part of the right to vote and to free and fair elections. Campaign activities can be difficult during COVID-19. The restrictions enacted to deal with the pandemic could unduly limit the right to free and fair elections.

While it is imperative that political parties adapt the way they campaign, limiting campaigning to digital or telephone options can disadvantage people who do not have easy access to these options.

COVID-19 compliant campaign methods include:

• only allow outdoor campaign events,

• requiring screening,

• ensure that there is enough space to implement social distancing,

• ensure the application of non-pharmaceutical interventions (mask, disinfectant), and

• recommend that vulnerable people do not attend these events.

Most of these measures are already contained in the Disaster Management Act, but their application can be problematic. One solution could be for the electoral commission to oversee the process, with penalties for non-compliance.

Under the conditions of COVID-19

Sixty percent of adults support postponing this year’s local elections, according to a January 2021 poll by the University of Johannesburg and the Human Science Research Council. This correlates with international research.

This indicates that fear of infection at the polling station is a significant concern, apparently depending on whether the country is seeing an increase or a decrease in cases.

Most countries have chosen to conduct the elections in a COVID-19 compliant manner. The question is what are the criteria for free and fair elections during COVID-19, and whether based on these criteria the elections would be more free and fair in February 2022.

Having higher vaccination rates might be a reason for postponement, but might not be achieved by February 2022. Experts have suggested that in order to have herd immunity, 67% of the population must be vaccinated. But experts have already warned that herd immunity is unlikely to occur. Does that mean then that no election will be considered free and fair?

In our report, we compared the interventions proposed by the electoral commission to the recommendations of the World Health Organization. In general, the commission appears to have complied with these recommendations. For example, he considered increasing the number of polling stations, queuing outside, regulating the flow of people and the number of people in the place as well as disinfection and social distancing. Extended hours and physical barriers could be additional measures to implement.

Free and fair is the last question

The Election Commission did not have its usual voter registration weekends because the level of lockdown regulations in place from June 28 to July 25 and still in place since July 26 did not allow it. Although registration weekends are not required by law, it can be argued that their absence prevented more people from registering, thus affecting the freedom and fairness of the elections.

Ultimately, the question that needs to be asked is whether the elections can be free and fair if they take place in October. If the answer is yes, then that is the end of the question. If the answer is no, then the question is whether the elections should take place despite the risk of COVID-19, or should be postponed. This is the difficult question on which the Constitutional Court is called upon to rule.

Elmien du Plessis has already received funding from the NRF.

Petronell Kruger receives funding from SAMRC Wits Center for Health Economics and Decision Science – PRICELESS SA

Safura Abdool Karim receives funding from the SAMRC Wits Center for Health Economics and Decision Science – PRICELESS SA.

By Elmien du Plessis, Associate Professor of Law, North-West University And

Petronell Kruger, Principal Investigator, Public Health Law, University of the Witwatersrand and

Safura Abdool Karim, Senior Researcher, University of the Witwatersrand