By: Letlhogonolo Letshele
Covid-19 has changed the way political parties develop their election campaigns. But just how significant is this change and, more importantly, how will upcoming by-elections and local government elections be scheduled?
In response to the pandemic, the Electoral Court ruled in June that by-elections be postponed to a later date despite the infringement of the 90-day legislated period to fill councillor vacancies.
By-elections were postponed because there were no safety measures in place, understanding of the coronavirus was limited, and physical conditions did not allow for political parties to campaign.
The Electoral Commission of South Africa (IEC) has announced that 96 municipal ward by-elections are scheduled to take place in 56 municipalities. The by-elections will take place on November 11 and “will be held under strict new Covid-19 protocols”.
The local government elections will be held sometime from August to November 2021.
The Municipal Structures Act requires that by-elections must take place at least six months before the local government elections. This puts pressure on the IEC to clear the backlog of by-elections in the nine provinces by February 2021.
The ANC and the Economic Freedom Fighters have called for the postponement of the 2021 local government elections saying that Covid-19 will affect the electoral process, including demarcation of wards, which was delayed by the pandemic. But other political parties such as the Democratic Alliance, Freedom Front Plus, Congress of the People and the Inkatha Freedom Party rejected any postponement of the poll beyond the terms of the Constitution.
The IFP said, “We hope that the election will take place in the latter part of the 90-day rule allowed since the last election. Therefore, it should be in November 2021.”
Neither the Local Government: Municipal Systems Act nor the Constitution deals specifically with the postponement of local government elections. The Constitution provides that the elections must take place within 90 days of the last election. The last election was held in August 2016 and ideally the next election should be held by November 2021.
Back in 2016, when the Constitutional Court found that the IEC had failed to comply with the Constitution by not correctly capturing addresses on the voters’ roll in Electoral Commission v Mhlope and Others  ZACC 15, the judgment ruled in favour of the municipal elections going ahead.
So, if elections do not fall under the period as required by the legislation, the commission can only postpone the election provided that the postponement is necessary for ensuring a free and fair election. There is still enough time for the IEC to plan for the type of election that is going to take place during a pandemic.
The IEC rejected reports that the commission intends to postpone elections beyond the constitutionally permitted period. It said consultations with the minister of cooperative governance and traditional affairs, Nkosazana Dlamini Zuma, regarding the proclamation of the municipal elections, had begun. The minister will announce the date of the elections, or any changes to the date.
South Africa could explore alternative voting arrangements that can allow elections to take place during a pandemic. Although there is no legislation to guide us, the IEC already has special voting arrangements for older, disabled and pregnant people, as well as registered voters who cannot vote at their voting station on election day. These could be modified to reduce human contact and ensure good hygiene practices. In-person arrangements could be made to decrease the risk of contagion. Or the election could be spread across a few days instead of one.
Elections during a pandemic will present a plethora of problems. Even though protective measures were used in six elections held in Africa during the pandemic (Benin, Cameroon, Guinea, Mali, Burundi and Malawi), there were reports of contagion during the election in Guinea, Cameroon and Mali. Voter turnout for the Guinea and Mali election was low in comparison to past elections.
In South Africa, municipal polls generally experience lower levels of voter participation than national elections.
One of the biggest concerns is how the pandemic will affect voter turnout, given that elections are key instruments of democracy.
This was originally published in the Mail & Guardian.