The Constitutional Court Ruling and the Rule of Law in SA

before we get into the case in question, it is important to clarify some concepts. The South African liberal constitutional democracy is underpinned by checks and balances and the rule of law.

A liberal constitutional democracy can be defined as a system of government that is premised on three key features: democracy (government by the people); constitutionalism (rule of law and limits on both political and judicial powers); and liberalism (protection of individual freedoms and rights).

In a constitutional democracy, the three organs of the state, namely the legislature, the executive and the judiciary must be independent of each other, hence the notion of checks and balances.

The rule of law simply means that no person, group of people or government entity is above the law.

On 15 October, the Constitutional Court of South Africa overturned the ruling of the Electoral Court, delivered on 16 September, not to allow 181 African National Congress (ANC) candidates to participate in the upcoming local authority elections (4 November) in six municipalities.

The Electoral Court is composed of five members appointed by the president on the advice of the Judicial Service Commission.

Its main mandate is to review any decision made by the Independent Electoral Commission (IEC) regarding an electoral matter and may alter, reverse or uphold such a decision.

The Constitutional Court, on the other hand, is the apex (highest) court in the country and its main mandate is to guard constitutional supremacy, which means ensuring that all the laws and the interpretation thereof comply with the constitution.

The Constitutional Court is composed of 11 judges appointed by the president on the recommendation of the Judicial Service Commission.

The court case arose from the failure of the ANC to submit details of its candidates contesting proportional representation and ward seats in six municipalities in the Eastern Cape, Free State and KwaZulu-Natal.

The crux of the court case was the ANC captured the names of its candidates on the IEC portal, but did not press the final submit button before the deadline of 28 August.

This court case played itself out in a typical constitutional democracy playbook fashion.

In the first place, the IEC was bold enough to assert its independence by arguing that the ANC failed to press the final submit button and it, therefore, missed the deadline.

In a democracy, the independence of an electoral management body is imperative in assuring free and fair elections.

The position taken by the IEC, even though the ruling went against it, matters because it shows that the ANC, as the ruling party in South Africa, does not stand above legal reproach.

The IEC was caught between a rock and a hard place, because had it ignored that technicality and allowed the ANC to proceed with the registration of its candidates, it would have been accused of bending the rules in favour of the ANC.

Equally, the ANC’s decision to challenge the IEC’s decision in court shows that South Africa is a rule-based democratic dispensation.

South Africa has a rights-based constitution. Section 19(2) of the Bill of Rights, in chapter 2 of the constitution, guarantees every citizen the right to “free, fair and regular elections”.

That right is the obvious constitutional anchor for the ruling.

In a liberal democracy, the citizens are sovereign – that means that no one is above the people, as a collective – and elected leaders rule on the basis of a ‘borrowed’ mandate from the citizens.

Any ruling that went against the ANC’s ‘prayers’ would have disenfranchised the ‘sovereigns’ of their right to vote for a party of their choice.

After the court ruling, the IEC extended that ‘relief’ to 32 other political parties that were also affected.

In 1997, the South African government adopted a mantra that speaks to the need for all state institutions to account to citizens.

The mantra is ‘Batho Pele’, a Sesotho phrase that translates as ‘people first’. In my view, the Constitutional Court’s ruling is consistent with the spirit of Batho Pele.

• Uaripi Tjihenuna is a commissioner of the Electoral Commission of Namibia (ECN). The views expressed here are entirely his and not those of the ECN.

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