“If elections are held in October the IEC will unable to fulfill its constitutional obligations,” says Mashinini
Sekhukhune
The chairperson of Independent Electoral Commission (IEC), Glen Mashinini said they have approached the constitutional court on an urgent basis because there is a need for certainty on the preparations of the upcoming Local Government Elections (LGE).
Briefing the media, Mashinini said the commission wants the court to issue a directive to Cooperative Governance and Traditional Affairs minister Dr Nkosazana Dlamini-Zuma calling for the LGE to be held no later than February 2022.
This comes after the minister said the elections will remain until there is a court order declaring the elections to postpone.
The commission said it has taken note of the proclamation of the upcoming elections following legal sanctioned consultation processes between the minister and the commission.
Despite recommendation from a retired judge Dikgang Moseneke, who recommends that the elections may be compromised due to the covid-19 pandemic, the nation will go to the polls.
Addressing the media on LGE on Tuesday the minister said the IEC should approach the constitutional court on an urgent basis for the postponement of the elections.
“The commission has launched an application out of the constitutional court to direct the constitutional court because of a number of reasons primary of which being that the matter raises weighty constitutional matters involving the balancing of rights enshrined in the constitution,” said Mashinini.
He said the courts application is an extraordinary one and presumably unprecedented and will undoubtedly offer the Constitutional Court another opportunity to contribute to the evolving jurisprudence of our constitutional order.
The commission said the application is also launched on an urgent basis because there is a need for certainty on the preparations for the municipal elections.
“The Commission and electoral stakeholders are currently in an untenable position where preparations are proceeding for the October 27th elections whilst at the same time anticipating the outcome of the constitutional court application for a possible deferral of elections to February 2022,” said Mashinini.
“The nature of the relief sought by the commission is largely predicated on impossibility to perform a constitutional obligation which is the conduct of constitutionally compliant elections of municipal councils by 1 November 2021 due to the covid-19 pandemic and the measures that government has instituted to curb the spread of the virus,” he said.
According to the commission the issues which are core to the application have a bearing on the political rights of citizens as well as the right to life, bodily and psychological integrity and access to health care.
“Declaring that the Commission may hold the forthcoming local government elections outside the 90-day period required by section 159(2) of the Constitution and section 24(2) of the Local Government: Municipal Structures Act, 1998 and directing the commission to hold the forthcoming local government elections by no later than the end of February 2022,” Mashinini explained.
“Additionally, authorizing the Minister of CoGTA to withdraw the notice calling the forthcoming local government elections and setting 27 October 2021 as the date on which they will be held; and issue a fresh notice calling and setting a date before February 2022 for the forthcoming local government elections,” he said.
Mashinini further said the commission is seeking alternative relief in the event it is not successful on its preferred option.
“The alternative relief essentially asks the constitutional court to declare that failure to hold the municipal elections by 1 November 2021 is unconstitutional and invalid and suspending the declaration of invalidity until the end of February 2022,” said Mashinini.
Moreover, Mashinini said the commission asks the court to assume ongoing supervisory jurisdiction, requiring the commission to report to the court periodically on its progress in arranging constitutionally compliant local government elections in February 2022.
He said In order to avoid uncertainty about the legal status of current municipal councils the commission seeks an order that the municipal councils remain competent until newly elected councils are declared elected.
“This court application affects the rights of all citizens of the country and thus everybody has an interest in the proceedings that will evolve in the constitutional court,” said IEC chairperson.
He adds “To facilitate access to the court process, the commission will immediately place the founding papers on its website as it transmits by electronic means the application to all registered parties,”
He however, said the electoral commission wishes to assure South Africans that it is committed to conducting an election in terms of the constitutional standards and it wishes to do so in the shortest reasonably possible period whilst preserving the rights to life, bodily and psychological integrity and access to health of citizens of the country.
