The Institute for Accountability in Southern Africa

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Ensuring free and fair elections (cont.)

The Bill of Rights confirms and guarantees to every adult citizen the right to "free, fair and regular elections..." The guarantee in this case binds the IEC, as an organ of state, to respect, protect, promote and fulfill this precious, hard won and fundamental right.
Against this legal background it is accordingly disturbing to read that the Chairperson of the IEC, Dr Brigalia Bam, has a view of its obligations that does not accord in some ways with the obligations of the IEC as spelt out in the Constitution, the Bill of Rights and the applicable laws, regulations and code of conduct for political parties at election time. An interview published over the weekend has Dr Bam quoted as saying: "Our powers, I'm afraid to say, are limited. It's really down to persuasive power."
In fact, the obligation to "ensure free and fair elections" is not limited in any way in the Constitution, which is our supreme law. The Electoral Act creates a wide range of statutory offences aimed at giving teeth to the notion that freedom and fairness are the hallmarks of our elections and that intimidation, undue influence and threats of violence are forbidden.

It is not necessary, or even advisable - except in the most extreme cases, for the IEC to go so far as to invoke the machinery of the criminal justice system. Those who resort to bellicose mutterings, loud and aggressive behaviour, actions that foreshadow or constitute violent intimidation of their political adversaries, even those who sing militaristic songs at election time should all receive a firm but polite request from the IEC to desist, to give an undertaking to it that they will so desist, and they should also be warned firmly that if they do not do so, a civil interdict, with costs on a suitably punitive scale, will be sought against them in the High Court, in the interests of putting an end to their illegal activities and ensuring that which the IEC is obliged to ensure: free and fair elections. This will have the salutary effect of taking some of the unnecessary heat out of the election campaign, it will save the lives of those who stray into the line of fire between political adversaries, especially those who act as enemies of each other and who engage in illegal activities which prejudice the prospects of a truly free and fair election later this year. The Electoral Act empowers the Chief Electoral Officer to institute civil proceedings. This seems to have been overlooked when Dr Bam was interviewed.
If the IEC does not have the infrastructure and personnel to write a handful of letters of demand to the chief instigators of the notorious and well publicized illegal activity around the election campaign, it ought to give consideration to engaging the pro bono services of legal practitioners to monitor what the political firebrands are saying and doing, so that they can swiftly and pro-actively write follow up letters of demand in order to defuse a situation in which lives have already been lost quite unnecessarily and all indications are that this trend will continue if it is not dealt with in an accountable manner that is truly responsive to the needs of the people. This much is clear: the people do not need an election campaign marred by bloodshed, war-talk and intimidation. The IEC has the responsibility to ensure free and fair elections; this can not be achieved in an atmosphere of intimidation and violent confrontation. It is for the IEC to take the initiative to ensure that incidents of the so easily repeated kind that occurred recently in Nongoma (an event which perplexingly took Dr Bam by surprise) are not replicated elsewhere in the country. Obviously, it would be ideal to reach an agreement to arrange the schedule of party political meetings and other activities, public utterances and campaigning in such a way as to avoid or at least minimize clashes, but unless the IEC takes the lead in this regard, those spoiling for a good fight, not a free and fair election, will get their way until the dysfunctional criminal justice administration is stirred into action, probably to investigate deaths and injuries, rather than to prevent them.

Despite what Dr Bam is quoted as saying in relation to the provocative rhetoric of the usual suspects, namely that dealing with this is not the job of the IEC, it actually is; particularly as the election draws closer. A campaign framework in which judges are branded "counter-revolutionaries", the "shoot to kill for Zuma" slogan is so popular that it is engraved on the butts of mock machine guns that are waved around at rallies, and that song about bringing him his machine gun is sung without fail, is not a framework conducive to a free and fair election. Declaring "no go" areas for canvassing by political opponents, and threatening to trespass in their homes do not in any way contribute to the mission of holding "free and fair elections".

The code of conduct under the Electoral Act binds all political parties and their functionaries who participate in elections from time to time. It is the basis upon which participation is allowed. It is not, in the words of Dr Bam, just "something we talk about to the political parties all the time" it is something to be respected and properly enforced. If the IEC is more than just an election management machine, as the Constitution requires it to be, it must take its obligation to ensure free and fair elections a lot more seriously than merely stringing a banner with those nice words on it across the entrances to polling stations. One thing Dr Bam is dead right about, as she put it in the interview: "There is no way you can have a credible election if there is violence." The IEC has a vital role to play in the avoidance of any scenario in which election violence takes place. It is not going to achieve this by sitting on its hands in the face of the known activities of the infamous individuals who are given to inflammatory rhetoric, a precursor to election violence.

Paul Hoffman SC
Senior Advocate of the High Court
9 February 2009

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