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The Observer Role of KwaZulu-Natal Christian Council in Government Elections: Are Electoral Observers Protected and not Toothless?

The Republic of South Africa is built on values which include the rule of law and openness. Once these go, the Republic will be flushed down the toilet with them. And so, in relation to regular elections, municipal or national and provincial, the Constitution obliges the Independent Electoral Commission (IEC) to ensure that elections are free and fair. This means the IEC is obliged not just to ensure that the rule of law is maintained in respect of elections, but that it is seen to be so. For justice must not just be done but must be seen to be done. How the freedom and fairness of the elections is seen constitutes what determines whether such freedom and fairness exists. It is in this context that one in this article considers the statutory role of electoral observers, particularly whether it is toothless, and whether it is constitutional if one has regard inter alia to the fact that the IEC is under no statutory obligation to accredit any observer of the elections.
The key statutes, aside from the Constitution, which regulate the powers and functions of the IEC is the Electoral Commissions Act 51 of 1996 (Commissions Act), the Electoral Act 73 of 1998 (Electoral Act), and the Municipal Electoral Act 27 of 2000 (Municipal Electoral Act). And the object of the IEC in terms of the Commissions Act is to “strengthen constitutional democracy and promote democratic electoral processes”. Organisations such KwaZulu-Natal Christian Council (KZNCC) have their observer statuses regulated by sections 84 and 85 of the Electoral Act and sections 41 and 42 of the Municipal Electoral Act. In terms of these provisions observer organisations may be accredited by the IEC, presumably in partial fulfilment of its objective to strengthen constitutional democracy.
While such observers do not have an automatic right to observe the electoral processes of the IEC, but are granted such right by the IEC itself through accreditation, there is another type of observers who however possess observation rights by virtue of being registered political parties or independent candidates who are contesting the elections in question. (Independent candidates have thus far only been able to stand for public office in municipal elections and not national or provincial ones. But the Constitutional Court has, recently, in the case New Nation Movement NPC and Others v President of the Republic of South Africa and Others declared the Electoral Act unconstitutional to the extent that it excludes independent candidates from contesting national and provincial elections. Parliament has until mid-2022 to revise the Electoral Act or establish law regulating the participation of independent candidates to contest national and provincial elections.) Political parties and independent candidates therefore have an automatic right to appoint agents to observe the elections in terms of sections 58 and 59 of the Electoral Act and sections 39 and 40 of the Municipal Electoral Act. For purposes of this article, the material differences between these two types of observers, which I will call “independent observers” and “partisan observers” respectively, is firstly that one has automatic rights to observe while the other has to be accredited subject to the discretion of the IEC; secondly, while partisan observers have substantial interests in the outcome of the elections as contesters in them, independent observers have no more of an interest than the voters themselves; thirdly, partisan observers have intervention powers by way of lodging or bringing objections to presiding or counting officers of voting stations, but independent observers have no such right but may, according to section 55(1) of the Electoral Act, lodge an objection with the IEC itself and not the presiding or counting officer.
To the extent that independent observers are able to file objections directly with the IEC which is also obliged to consider them, there being an appeals process through the Electoral Court, all in terms of section 55(5) of the Electoral Act and section 65(5) of the Municipal Electoral Act, independent observers are not toothless: it is for parliament to decide the form and extent in which independent observers can hold the IEC accountable, and such a method of filing complaints can be effective.
Contrary to voters and agents of both political parties and independent candidates, independent observers do not, and rightly so, participate in resolving issues or objections at voting station level. Their hands must be free of immediate involvement in order to make their role more meaningful in the larger scheme of things. Their role is unique from both voter and agent. They should take no side, predispositionally, in any matter: their only impartial interest is that the elections must be free and fair (see section 84(3)(b)(i) of the Electoral Act). They presumably assist the electoral democratic process by giving it at least an appearance of openness and transparency, and at best, through their objections, actual freedom and fairness.
But the Electoral Act (and the Municipal Electoral Act) appears to fail to protect accreditation applicants: it is my considered view that the Electoral Act is partially tainted with unconstitutionality. To the extent that the purpose of the statutory provision for independent observers intends to apply the constitutional value of openness or transparency, it fails firstly to oblige the IEC, where available, to accredit a qualifying applicant to observer status, and secondly fails to protect independent observation applicants from possible arbitrary disapprovals on the part of the IEC, and thirdly fails to provide for a review or an appeals process against disapprovals. These three failures are unconstitutional as the purpose of the Electoral Act in as far as transparency and openness, through the accreditation of observers, is concerned is irrationally connected with them.
The Electoral Act and Municipal Electoral Act fail to oblige the IEC to accredit a qualifying applicant. And so the IEC is under no obligation to accredit any qualifying observer in elections. This would then beg the question of why such a provision for independent observer status exists. It must exist in order to provide for at least an appearance of free and fair elections, and at best actual freedom and fairness of elections through the objections process. The IEC effectively has the discretion to not have independent observers in elections. If that is the case, the failure of the law to oblige the IEC to accredit worthy applicants is irrational and therefore unconstitutional.
Section 84(4)(b) of the Electoral Act says an unsuccessful applicant must be advised of the decision of the IEC in writing, but there is no obligation on the IEC to provide reasons. This creates room for arbitrariness and also works against an appearance of free and fair elections. Section 5 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) also does not assist here because it requires written reasons in cases where a person’s rights have been “materially and adversely affected” by the IEC. In the case of an organisation not being accredited, there is no such right implicated, since no organisation has the automatic right to be an independent observer, and it is therefore not triggered, let alone the fact that even if PAJA was triggered the IEC would have 90 days within which to give a written response by which time the elections may be over. Electoral disputes and complaints are by nature urgent, hence the creation of the Electoral Court by the Commissions Act. The Electoral Act and the Municipal Electoral Act are irrational also to the extent that no reasons are required of the IEC in declining applications for observer status. Section 84(5) of the Electoral Act and section 41(4) of the Municipal Electoral Act also fails to protect independent observers from arbitrary cancellations of their accreditation by its failure to require written reasons from the IEC to the affected organisation. While the Promotion of Access to Information Act 2 of 2000 (PAIA) may be of assistance in terms of access to information on the reasons of the IEC by an applicant, section 25(1) does not adequately protect unsuccessful applicants because it would give the IEC a mandate to provide access, if granted, “as soon as reasonably possible, but in any event within 30 days”. This is unacceptable for an urgent scenario as involved in elections. The decision not to oblige the unsuccessful applicants with reasons is irrational and therefore unconstitutional.
Lastly, while section 20 of the Commissions Act provides for both reviews and appeals against decisions of the IEC, to the Electoral Court, no such right is given to unsuccessful accreditation applicants, first because no reasons are owed to them in terms of the Electoral Act and Municipal Electoral Act, and secondly because there is no explicit provision for a review or appeal in them. Such failure to at least explicitly provide for a review or appeal process against a decision to the IEC in this matter of accreditation is irrational and therefore unconstitutional. The issue is not the lack of a review or appeal specifically to the Electoral Court, but it is the principle or an appeal or review that is in issue. On this failure of explicitly, if the review and appeal process is applicable to the complaints lodged by independent observers, perhaps a court declarator is needed for that interpretation in order to provide certainty.
Aside from the above three failures which appear to render the two Acts unconstitutional to the various extents, three more issues arise for consideration by the IEC and parliament. Firstly is the fact that it is the IEC which makes the decision to accredit an applicant independent observation may not be reasonable if the objective is to maintain an appearance of impartiality. It may not be legally permissible for parliament to oblige the IEC to be subject to an accreditation decision by one of the other Chapter 9 institutions of the Constitution, due to their independence from each other, it may be better for the principles of openness and impartiality that the Electoral Act and Municipal Electoral Act remove the accreditation and discretionary decision-making role from the IEC and place such role in the hands of an adjudicator committee that may be appointed by the IEC on an ad hoc basis at every election time. It’s decisions must be binding on the IEC. In this way the appointment process of independent observers has a realistic appearance of impartiality. This aspect is however not contributing to the proposed unconstitutionality of the respective Acts but it is nevertheless something to be considered by parliament.
Secondly is the fact that the two Acts unreasonably fail to prescribe a timeframe for the IEC by the end of which it must have sent the accreditation certificates and uniforms to the successful applicants as independent observers. Late communication and transportation of these undermines the very purpose of the provision for independent observers and can be tantamount to an unsuccessful application.
Thirdly is the fact that the prescribed aprons for independent observers, as required by section 85(2) of the Electoral Act and section 42(2) of the Municipal Electoral Act, have “IEC” written on them. This does not assist but diminish the appearance of the required impartiality of independent observers. This must be changed in the interest of the appearance of impartiality as required by the Constitution.
While KZNCC has not had an experience of being an unsuccessful applicant to accreditation by the IEC, there is no guarantee that it will always be accredited when it qualifies and it is reasonable to be so. There is therefore no complaint here by KZNCC against the IEC but there is at least a realised statutory gap and unconstitutionality which may or may not have already prejudiced other applicants. As an organisation whose interest is in social justice, KZNCC must take it upon itself to consider this statutory stain of unlawfulness and champion its repair through legal means in relevant declarators. Legal advice may be sought in this regard and, if agreed, appropriate legal steps taken further.
The electoral laws appear to provide teeth to independent observers through the Electoral Act and Municipal Electoral Act which obliges the IEC to consider its possible objections before the announcement of election results. But, while no evil has thus far been experienced by KZNCC, emanating from the realised unconstitutionality of the Electoral Act and Municipal Electoral Act to the extent discussed in this article, justice is not only reactively but proactively realised. KZNCC must pursue the amendment of the electoral laws to the extent discussed in this article so as to provide protection for observer accreditation applicants in line with the constitutional values of the rule of law and openness.

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