Constitutional Court judgment – Kham v IEC

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30 November 2015 – This morning the Constitutional Court of South Africa handed down Kham and Others v Electoral Commission and Another [2015] ZACC 37 (full judgment; media summary), a judgment of major significance. We set out the background to the case in our preview in September. The gist is that several members of the ANC in Tlokwe Municipality had defected from the party and registered as independent candidates in the 2013 by-election. After the election, they went to court arguing that the election was irregular because voters’ addresses were not properly recorded – raising the possibility that fraudulent votes had been cast. But the Electoral Court dismissed the complaints (with Wepener J dissenting) on the basis that it lacked jurisdiction to make the order the applicants sought, and that the Electoral Commission’s own internal investigation had shown satisfactorily that the irregularities were not material.

As we hoped, the Constitutional Court has unanimously cut through the formal and jurisdictional obstacles the Electoral Court erected and upheld the appeal, robustly vindicating the constitutional right to vote. (If only the Court had done the same in its last judgment implicating voting rights, the timid and technical My Vote Counts v Speaker.) Wallis AJ, in his first judgment for the Court, held that the elections were ‘infected with irregularities’. In a clear breach of its obligations, the Electoral Commission failed to ensure that voters’ addresses were recorded. Even the Commission’s own, rather limited investigation showed that almost a third of newly registered voters in the affected wards were ‘definitely registered in the incorrect ward’. And the addresses provided by a number of others ‘were so sketchy’ that they might also have been wrongly registered. This made for a system that ‘lent itself to manipulation’ because one of the larger parties – naming no names – could have easily stuffed the electoral roll with supporters from outside the ward.

The two further irregularities were that the voters’ roll disclosed to the candidates did not include the voters’ addresses, making it especially difficult for independent candidates to canvas support, and that the rolls were, in addition, disclosed extremely late. The Court accordingly held that the elections were not free and fair.

Unlike the Electoral Court, it did not feel it necessary to speculate about whether the result of the election would’ve been different absent the irregularities. The point was simply that numerous people had been incorrectly registered in the affected wards and that the independent candidates were hampered in their ability to contest the election. Wallis AJ said it was ‘essential to hold the IEC to the high standards that its constitutional duties impose on it’. ‘[A]n election conducted when there is a serious question as to the reliability of the voters’ roll cannot be described as free or fair.’

The outstanding question was what to do about this. The applicants had asked the Court to set aside the by-elections and direct the Commission to conduct new ones. But, as Wallis AJ noted, ‘[o]verturning an election is a serious business’. The time, expense and practical difficulties of holding a new election are significant. And councillors who have held office for two years will now have to be removed – and with national municipal elections in any event just around the corner. But Wallis AJ said that this must all be understood against the backdrop of the importance of the constitutional right to vote, for which many fought and died. ‘It is vital’, he held, ‘that we are jealous of the privilege so hardly won’. On balance, therefore, the deeply flawed by-election had to be set aside.

This is a judgment and order of major significance. The decision will obviously have tremendous practical importance for Tlokwe Municipality, but also raises deeper questions about our electoral system and the courts’ power to intervene when things go wrong. It will be interesting to see how the affected parties react. The judgment even hints at (but ultimately downplays) fears that disgruntled members of the Commission will not cooperate in the court-ordered re-running of the election. Finally, though the Court does not accuse the Commission of any sort of bias, and studiously avoids implicating the ANC in the irregularities, those are the sorts of concerns that lurk beneath the surface. At any rate, it is big news when the highest court in a country declares that its elections were not free and fair.