Elections as an Accountability Mechanism during Times of Emergency

"Voting" by justgrimes is licensed under CC BY-SA 2.0.

South Africa is a democratic country founded on the constitutional values of human dignity, equality, constitutional supremacy, the rule of law, and ‘a multi-party system of democratic government to ensure openness, transparency, and accountability’.

The South African Constitution further embodies an objective, normative value system intended to animate and discipline the exercise of state power. Notwithstanding that South Africa was governed in an executive-led state of exception until April 2022, which begs for more rather than less accountability.

According to the doctrine of separation of powers, the legislature (and the judiciary) have the duty to check the conduct of the executive to ensure accountability. Although the question of accountability is clear in the Constitution, the duty of legislative oversight seems to fall away or is shifted to the executive branch during a state of emergency thus deviating from the traditional form of checks and balances.

A state of emergency entails the suspension of the rule of law by the government in circumstances where a country is confronted with a serious threat that may result in fatalities and the state responds by implementing rules, which would not be justifiable under normal conditions considering the founding values and principles of the supreme law of the land. The conduct and decision-making processes of government are justified due to the country facing extreme challenges that require the violation of its principles to protect itself.

As a means to control certain unavoidable threats, the Constitution creates some form of derogation provisions permitting parliament to enact laws that allow the executive power to control such situations. Section 37 of the Constitution provides that a state of emergency may be declared only in terms of an Act of parliament when the life of the nation is threatened, and the declaration is necessary to restore peace and order.  Under these circumstances, a state is allowed to suspend the protection of certain human rights when faced with a public emergency threatening the lives of the nation.

The Disaster Management Act 57 of 2002, makes provision for the declaration of a disaster in any part of the country or in the whole country by the Minister of Cooperative Governance and Traditional Affairs if a state of disaster has occurred in a certain area or province or in the whole country. In short, the term “disaster” is defined as follows in section 1 of the Act “as a progressive or sudden, widespread or localised, natural or human caused occurrence” which may cause or threaten to cause death, injury, or disease. The purpose of the Act is to provide for a synchronised disaster management policy that focuses on preventing the risk of disaster and mitigating its severity. Under these circumstances, a state is allowed to suspend the protection of certain human rights when faced with a public emergency which threatens the lives of the nation.

In theory, the provisions allowing the government to act decisively to protect the lives of people seem like a great achievement for the state, however, in practice, the deviation from the traditional application of separation of powers and checks and balances creates a gap between the rule of law and the protection of fundamental human rights. The gap is created as states can legally transgress the fundamental rights guaranteed in the Constitution with little to no form of accountability.

For example, in March 2020, the South African government introduced restrictive Covid-19 lockdown regulations including a ban on alcohol and cigarette sales amongst others. The ban on the sale of tobacco in terms of Regulation 27 was later declared unconstitutional in Minister of Cooperative Governance and Traditional Affairs and Another v British American Tobacco South Africa (Pty) Ltd and Others and the court held that the Minister failed to demonstrate that the infringement of the fundamental rights to human dignity and bodily and psychological integrity was justified.

The Covid-19 pandemic brought about many challenges including those which resulted in the government making certain restrictions that limited citizen’s rights including the right to freedom of movement. The restrictions created uncertainty with regard to the elections that were set to be held in 2021. Section 24 of the Municipal Structure Act 1998, read with the Municipal Electoral Act 2000 highlights the constitutional requirement of regular free and fair elections.

“The postponement of elections weakens accountability and creates room for a culture of impunity…”

Elections play an important role in ensuring public participation in the governing process, as such, citizens must be allowed to exercise their right to vote to hold the government accountable. Elections provide the public with an opportunity to hold those in power accountable for their actions through the process of electing new leaders when they are not satisfied with the current government. When citizens are not satisfied with the service delivery of the government, they can hold those in power accountable by voting them out.  Therefore, it is important to ensure that this process is carried out even during states of emergency.

In Electoral Commission v Minister of Cooperative Governance and Traditional Affairs, the Independent Electoral Commission approached the Constitutional Court seeking an order to postpone the local elections to a date beyond the one prescribed by the Constitution. The Court dismissed the application resulting in the elections being held in November 2021 in line with section 159 of the Constitution, which requires local government elections to be held within 5 years and 90 days of the last elections.

Before 2021, the last local government elections were held on 3 August 2016; thus, the elections were due to be held on 1 November 2021. The Court dismissed the application to postpone the elections and set aside the Minister’s proclamation in which he declared 27 October 2021 as the date for local elections. 

The Court held that the Commission’s constitutional duty is to conduct elections within the prescribed time‑limit and to ensure that the elections are as free and fair as reasonably possible. The Court further highlighted the importance of regular elections to ensure that local government remains committed to fulfilling the constitutional values of transparency, accountability, responsiveness, and openness.

South Africa has the flexibility to revisit its electoral system to encourage inclusivity and promote accountability. Electoral reform is not always concerned with the values of shared cultural identity and freedom, rather the foundation of those who promote reform do so to encourage equality, honesty and transparency and accountability in government and political unity. The state may also explore the possibility of implementing remote voting alternatives, such as online voting. This would provide flexibility and convenience for voters who may be unable or reluctant to visit polling stations during the pandemic.

Instead of postponing elections, the government can strengthen voter education through outreach campaigns to encourage the public to use their voice through the ballots.

Implementing strict health and safety procedures at polling stations to protect voters and the election officials during process including frequent disinfection of voting equipment. Although elections occur once every five years, it is important to note that the survival of the governing party is dependent on the continued support of the public, as such, poor performance will be addressed through collective accountability. The postponement of elections weakens accountability and creates room for a culture of impunity as those in power are presented with an opportunity to continue with no form of answerability.