Former Deputy Chief Justice Dikgang Moseneke has handed over the final report to the Independent Electoral Commission (IEC) on the findings into the feasibility of free and fair elections amid the Covid-19 pandemic.

Justice Moseneke recommended that local government elections be postponed until February 2022 for elections to be regarded as free and fair due to the threat posed by Covid-19 and the current restrictions on political activity. The IEC is yet to decide on the local government elections scheduled for 27 October 2021.

The safety of holding elections during a pandemic has been an apple-of-discord since countries worldwide began implementing public measures to curb the spread of the virus. Considering this, the IEC set up an inquiry evaluating the impact of Covid-19 on conditions conducive for holding free and fair elections later this year. The inquiry considered submissions from civil society organisations like My Vote Counts (MVC), medical experts, political parties, and groups and individuals who have an interest in local government elections.

What to consider if we want to postpone elections

Local government is, in many cases across the country, in a state of crisis.

Local government is central to the delivery of essential services, and the municipal audit for 2019/20 revealed that only 27 of South Africa’s 257 municipalities received a clean audit. That is ten less than the local government 2018/19 audit.

During the same period, the Auditor General reported R26 billion in irregular expenditure in municipalities. In this context, local government elections can be a powerful tool that localised communities can use to hold public representatives to account.

The pandemic is changing how decisions are made — it has even disrupted elections and undermined the democratic process.

Given the risks posed to the voters, voting staff and campaigns, postponements can be rational. However, such decisions might fail to meet democratic standards either because new elections are not scheduled promptly or officials set new dates without preparing for safe and secure voting. These and other related changes in elections can damage the credibility of elections.

Even the medical experts have indicated that we cannot predict the trajectory of the pandemic and how it will affect us in February 2022 when local government elections are expected to take place. Thus, the decision to postpone elections in the hope that Covid-19 will improve at a later stage can be detrimental.

Experiences from other countries have shown that changes to a planned election date lead to further postponements, leading to political uncertainty, introducing instability.

Voter turnout

One of the biggest concerns is that postponing elections could result in lower voter turnout. Municipal elections generally experience lower voter turnout than national and provincial elections, but with this recommended postponement, many may feel deprived of their right to hold elected representatives accountable when it matters the most and decide to not further partake in the electoral process. This is a factor that needs to be considered because people should not have to choose between their health and exercising their political rights.

READ | Moseneke report: Will the IEC postpone the local government elections …or not?

Section 159 of the Constitution is clear that the term of a Municipal Council may not be more than five years and when its terms expire, an election must be held within 90 days after that.

As of 1 November, current Municipal Councils will cease to exist and lose their legal mandate to function. Thus, Municipal Councils functioning beyond this period will be constitutionally invalid. As pointed out by constitutional experts, addressing this may not be possible.

Possible ways of ensuring a postponement of elections

Because no precedent can guide us in what to do during a global health pandemic and neither is there a legislative framework to guide the conditions under which a postponement is made, the legal options available to allow for the postponement of the election are difficult to implement.

The option to amend the Constitution would take about three months and requires a majority of 75 percent of members of Parliament, which is unlikely as political parties are divided on the postponement of the election. While the option to approach the courts has no guarantee because the courts have never been asked to make such an order.

As such, a postponement should only be considered under conditions where all other reasonable alternatives have been exhausted where holding free, and fair elections would be impossible, to such an extent that the election would have to be nullified or there is compelling evidence that the election would lead to a large spread of Covid-19.

The IEC should consult with relevant stakeholders including political parties before making a final decision. Relevant stakeholders need to be consulted to ensure that their inputs are considered in whether to halt the election until February.

Justice Moseneke attempted to strike a balance between complex factors to determine whether free and fair elections can be held during a pandemic.

The recommendation to postpone until February is reasonable because of the threat of Covid-19 and current restrictions on political activity. The IEC will be under pressure to decide in a matter of days whether it will implement Moseneke’s recommendation to halt local government elections until February. While the prioritisation of public health is important, any success will not be sustainable without strong democratic institutions.

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