IEC says holding elections in October presents serious legal, political risks

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Lawyers for the Independent Electoral Commission (IEC) say it is not possible to have free, fair and safe elections by November 1 this year.

Lawyer for the Electoral Commission Wim Trengrove told the Constitutional Court that there are serious legal and political risks presented by holding the Local Government Elections in October.

The IEC insists that a free, fair and safe election is impossible this year and should be postponed to February 2022.

The IEC has also argued that holding the elections this year will privilege well-resourced parties like the Democratic Alliance (DA) which can continue campaigning electronically, thus rending the polls unfair.

“The elections will be vulnerable to being overturned and in fact if the elections are not free and fair, they are unconstitutional and must be overturned. But the consequences would not be limited to the legal, they would also have social and political consequences. If the elections are not free and fair, then they would not have credibility. Society would not respect the outcome,” says Trengrove.

In the related video below, the DA said postponing the elections would create a constitutional crisis: 

“Not asking for the impossible”

Trengrove further argued that the Constitution does not ask for the impossible and instead, facilitates a balance among the three requirements with regards to the holding of an election.

Trengrove says his client contends that the need to stick to the deadline in the Constitution that Local Government Elections should be held no later than five years and 90 days after the previous poll, should not compromise the requirements.

“The law including the constitution does not demand the impossible and therefore if it is not possible to meet all three of those constitutional demands then the law including the Constitution permits us to do the next best thing to compromise by striking a balance between those three demands and we submit and we submit that the most appropriate balance is to hold free and fair elections as soon as possible even if we can’t do so by the 1st of November.”

Trengrove further says it was neither appropriate nor desirable for the IEC to seek a Constitutional amendment for the purposes of postponing the Local Government Elections.

The DA and the African transformation Movement (ATM) have suggested that pushing back the elections should be done through the amendment of the Constitution, which is the legal instrument that sets the requirements for when they should be held, rather than through the Constitutional Court.

In arguing this, Trengrove says: “It would on the contrary set a very undemocratic and undesirable precedent if it were to be established that the majority party may entrench itself in office by amending the Constitution to extend its term of office. We accept this argument that is raised by some, but we submit that the Electoral Commission was neither required nor was it competent nor was it appropriate for it to seek a Constitutional amendment.”

Meanwhile, the Council for the Advancement of the South African Constitution (CASAC) says they will add their arguments about why the Constitutional Court should not grant the relief sought by the IEC to postpone elections to early 2022.

CASAC executive secretary Lawson Naidoo says granting the order could have profound consequences.

Naidoo says, “There is a parliamentary mechanism to amend the Constitution. They’ve known for a very long time these elections were coming, if they felt it necessary to delay they should have taken that route. It would set a dangerous precedent to grant the order because they then open the door for further applications to the court to find ways around other constitutional obligations by organs of state.”

In the live stream below, Constitutional Court hears applications by the IEC to postpone elections: