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CO-OPERATIVE FOR RESEARCH & EDUCATION
Braamfontein
3 June
1996
Enclosed please find representations to the Constitutional Court by
the Co-operative for Research and Education on issues related
to the
establishment of the Electoral Commission.
We will be available to
provide oral evidence should the Court so require.
PHIROSHAW
CAMAY
REPRESENTATIONS TO THE CONSTITUTIONAL COURT BY
CO-OPERATIVE FOR RESEARCH AND EDUCATION
INTRODUCTION
The Co-operative for Research and Education is
a Section 21 not-for profit organisation established in 1990 to provide
research, education
and training to disadvantaged communities. CORE has
monitored political economic and elections issues over this period. In 1993
CORE began to provide an election information service and provided assistance in
1994 to the election efforts under the Independent
Electoral Commission. The
work of the IEC was reviewed through an independent evaluation conducted by CORE
and published in 1995
entitled The People Shall Govern. Given the work
undertaken by CORE on behalf of the National Peace Accord and the experiences
gained
during the election. CORE also published the Manual for Civil Society
Election Monitors. In 1995 CORE published an Election Management
Manual for
election officials providing a ready reference for all the tasks and duties
which needed to be addressed to conduct peaceful,
free and fair
elections.
It is against this experience that the following
representations are made.
INDEPENDENT ELECTORAL
COMMISSION
The Constitution correctly sets out the aims of the
Commission to strengthen constitutional democracy.
However, section 193
of the Constitution describes how the commission will be established through
recommendations of the National
Assembly:
Proportionally represented members
of all parties in the Assembly will make recommendations which will be approved
by a resolution
of the majority of the members of the Assembly. The President
of South Africa is then required to appoint the members.
The process of
nomination and approval is patently political and only allows those parties
represented in the National Assembly to
exercise a say. Parties outside the
National Assembly operating at a provisional or local level do not have any
right. The process
does not take into account any increase or decrease in
political power of elected parties.
In effect the majority party in the
National Assembly will at all times have the final say . Through the appointment
of Electoral
Commissioners favourably inclined to the majority party, it can
ensure rules and regulations including registration and demarcation
processes
favourable to such a party. The Commissioners are also dependent on the favours
of the majority party for re-appointment
or removal from office which can decide
on the "Misconduct, incapacity or incompetence" in terms of section
194.
It is commonly accepted that Commissioners as well as the Commission
is independent and impartial at all times. This is a commonly
accepted thesis
amongst international experts and institutions who observe and monitor
democratic elections.
The experience of 1994 national elections and the
experience in 1995/96 of the Election Task Group clearly demonstrate that
Commissioners
are often called upon to make unpopular decisions often of far
reaching consequences in regard to the conduct of the elections.
This
unique responsibility of ensuring democratic practice and equality in the
elections cannot be compromised. Popular democracy
demands and as the
constitution correctly notes in Chapter 2 of the Bill of Rights Section 9(2)
that:
- Equality includes the full and equal enjoyment of all rights and freedoms,
and
- 19(2) Every citizen has the right to free, fair and regular elections for
any legislative body.
Again international practice aspires to ensuring that all voters have
the:
(a) equal right to register to vote
(b) equal right to exercise their vote
(c) and in addition that their vote has equal weight as against any other
vote cast.
CONTENTION
Our contention therefore is that the
appointment, removal and dismissal of the Electoral Commissioners is
unconstitutional and fails
to comply with the Constitutional Principles, the
Bill of Rights and the conditions necessary for building and entrenching a free,
independent Election Commission necessary for a democratic society.
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