Managing democracy: The problematic birth of the electoral commission

In 1993 the management of South Africa's first democratic elections was taken away from the Ministry of Home Affairs [which had organised all previous elections] and conferred instead upon an Independent Electoral Commission [IEC] chaired by Mr Justice Kriegler. As a new institution without any apartheid era baggage the IEC was able to command a degree of legitimacy and acceptance which other institutions might have lacked. The !EC nonetheless came under heavy criticism from both domestic and international sources over its management of these founding elections. Its major faults included poor management of the voting, an inadequate counting process, a lack of staff and facilities at many counting stations across the country and, quite crucially, a lack of transparency within the counting process itself. The lEC's reputation was also damaged by a later report by the Auditor General that scores of millions of Rands had been wasted or gone missing within the IEC, which also suffered huge thefts of materials - even after extensive vehicle recoveries, 98 of its vehicles remained stolen, as did 45% of all its computers, including 80% of all its laptops.

South Africa's transition to democracy has been relatively smooth; indeed, many writers have perceived the ease of this transition as virtually miraculous. Nevertheless, it is important to stress how perilously close the whole election process in 1994 came to total collapse and the devastating consequences this would have had for progress towards democracy. Although the 1EC did manage to steer the election towards a successful conclusion, it did so only thanks to significant assistance from the business community and the security forces who supplied specialist skills and logistical support, as well as benefiting from the supportive presence of a large bevy of international observers and monitors. It is unlikely that the new Electoral Commission [EC] ~ the word "Independent" has been dropped - will be reinforced to the same extent from such quarters next time and its task could conceivably be even more difficult than in 1994. South Africa is on its own now and a real measure of how well democracy has taken root will be the way in which the 1999 elections are administered and whether the outcome of those elections is universally accepted.

The 1996 Constitution seeks to protect South Africa's new-born democracy by endowing it with all manner of new institutions - the Public Protector, the Human Rights Commission, the Commission for Gender Equality, the Auditor General, the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Minorities - and the EC, which is thus given a permanent life. Of all these new institutions the EC not only pre-dates the rest but is clearly the most important - it has the country's democratic future in its hands.

The Electoral Commission Art just passed by parliament proposes a revamped and restructured EC with far wider powers and responsibilities than the 1EC of 1993-94. Warning signs are flashing, however. The original EC Bill met with widespread criticism, with many commentators arguing that the Bill was fundamentally flawed in its original draft form, in that it failed to guarantee the Commission the full independence required by the Constitution. The Bill was returned to the National Assembly's Portfolio Committee on Home Affairs for the redrafting of specific clauses but the Committee's amendments did little to remedy some of the Bill's inherent weaknesses.

The Constitution gives the EC the task of managing all national, provincial and municipal elections - a vast expansion of scope. The original 1EC had only managed the national and provincial contests because they were held simultaneously -which does not need to be the case again - while the 1995-96 local government elections were managed by a special Task Force. The Constitution also says that the EC is "independent, and subject only to the Constitution and the law". It "must be impartial" and must exercise its powers "without fear, favour or prejudice".

The Electoral Commission Act fleshes this out by giving the Commission even wider responsibilities. It must:

This sweeping extension of powers and responsibilities is itself not uncontroversial, but the sharpest debate has focused on the question of the EC's independence. The Act ordains that the Commissioners should be appointed by a four person panel comprising:

• the president of the Constitutional Court, as chairperson;
• one representative each of the Human Rights Commission and the Commission on Gender Equality;
• the Public Protector

This panel will choose a list of not less than eight candidates for the post of Electoral Commissioner, and this list will then be submitted to a special committee of the National Assembly on which all parties in the Assembly are represented pro rata. This committee will then nominate five commissioners from among the eight candidates and these nominations will then go before the whole National Assembly which makes the final appointments by majority vote. The State President then appoints the Commission's chairperson and vice-chairperson.

Commissioners must all be South African citizens, must not "at that stage have a high party political profile", and one of them must be a judge.

Commissioners may serve a maximum of two seven year terms but they are removable by the President in case of misconduct, incapacity or incompetence, or if a committee of the National Assembly finds to that effect, or if a majority vote of the National Assembly removes them.

The EC is subject to an Electoral Court which, in effect, has plenary powers. It not only hears all appeals against the EC but may review any of its decisions relating to electoral matters and may also find that a commissioner should be removed from office. The Court has five members, including a Judge of the Appellate Division of the Supreme Court [the chairperson], two other Supreme Court judges and two others. All must be South African citizens and appointed by the President on the recommendation of the Chief Justice. The President also has unlimited power to determine the terms of office, remuneration, conditions of service, benefits etc of all members of the Court.

As can be seen, the independence of the Commission is clearly in question. All the members of the original nomination-making panel are themselves presidential appointees. If current practice is followed this will mean that a majority of them will come from the governing party. These nominations will then be sifted by a committee on which the governing party again has a majority -and all of whose members are likely to be running for re-election. As if this were not enough, even those nominations will require a majority vote in the National Assembly - and effectively cannot get through unless they are acceptable to the governing party.

Even so, commissioners must worry about the possibility of having their decisions overturned by the Electoral Court - which is entirely Presidentially chosen; about failing to gain the favour of the governing party necessary to win a second term of office; or about being removed from office by the President or majority party if their rulings have displeased them. Members of the Electoral Court are, in turn, so entirely subject to the Presidential pleasure that they would need to be superhuman not to worry about incurring his displeasure.

Finally, it should be noted that while commissioners must not have a high party political profile "at that stage", this still leaves.it open for commissioners to be appointed who are loyal, if low profile, party members or even, who until recently did have high party profiles.

All told, it seems all but impossible that commissioners will, in the eyes of all parties, be able to live up to the Constitution's requirements that they "must be impartial" and "must exercise their powers and perform their functions without fear, favour or prejudice". As for the Constitution's injunction that the EC should be "independent, and subject only to the Constitution and the law", the Act makes it certain that they will be subject to the will of the governing party in the National Assembly and the leader of that party who is President.

The acid test of such a law is three fold.

First, would the present majority party be happy to place all these powers in the- hands of its opponents? Would it still feel confident that it would be fairly treated by the EC if there was an IFP President or an NP-DP majority in the Assembly? If the answer to that is no, then the Act will be a failure. If the answer is yes, then the question is why opposition parties were not given a larger share in shaping the EC in the first place.

Second, one must imagine the worst case scenario for the majority party and its leader; not one in which they are serenely confident of retaining their majority but one where it looks very much as if they are going to lose power and all the fruits of office with it. This is a judgement not just on the present incumbents of these roles but on all future holders of them. Can they, under such circumstances, be relied upon not to use their powers over the EC and the Electoral Court to ensure that they get the benefit of the doubt in all matters electoral? Again, it is sensible to ask this question assuming that those offices are held by one's opponents.

Thirdly, will the EC and the Electoral Court really enjoy legitimacy and acceptance of their rulings

from the minority and losing parties? By definition the winning party will be happy; it is what the losers think that matters. Africa has seen too many cases of electoral boycotts or low turnouts caused by an assumption that the electoral system is rigged. The real test of democracy is whether there can be real alternation in power, with defeat accepted as fair and legitimate by the losers.

One must also ask whether the broadening of the EC's powers is wise. Under the new dispensation it not only has to manage elections at all levels [and declare the results far more rapidly than has been achieved in the past] but take responsibility for the vast task of voter registration; carry out large scale and continuous educational functions; act as a research institute into electoral matters; carry out the large and detailed fob of ward delimitation right around the country; adjudicate disputes; review bills and laws and carry out extensive liaison tasks. Given that the old IEC failed to carry out even its far more limited functions terribly successfully, one has to ask whether this enormous expansion of roles will not create a vast, unwieldy and ineffective bureaucracy - not the best sort of organisation to resist the fierce political pressures it is bound to come under.

Finally, special queries exist over voter education and over electoral research. In a recent public opinion survey undertaken by the Community Elections Evaluation Group [CEEG] and CASE during the 1995 Local Government Elections, it was found that over half the sample had received no voter education and it appeared that not getting access to voter education may have been a reason for not voting. Their report also suggested that existing voter education was of a poor quality with an emphasis being placed on the actual process of voting (how to vote], rather than on information which would lead to a deeper understanding of why one should vote and the importance of local government in a new democratic order.

This may well be true - but it must be remembered that voter education is a controversial field, frequently attracting allegations that the educators are trying to impart an open or subliminal political message along with their education. Such allegations were often well founded in the 1993-94 period and it was precisely because parties did not trust the voter education efforts carried out by others that almost all of them mounted their own voter education campaigns.

Voter education which confines itself to telling people how to cope with the actual process of voting is least likely to attract such criticism; voter education that strays into areas such as "the deeper understanding of why one should vote" almost invariably attracts allegations of bias.

Such difficulties are not academic: if one imagines a large EC bureaucracy, endowed with large government funds, becoming the main purveyor of voter education, the fact that the EC is so thoroughly the creature of the ruling party and its leader is virtually bound to lead to allegations that it is abusing its voter education role in order to carry out propaganda.

The same difficulty could well exist over electoral research, particularly if that is assumed to include the carrying out of opinion surveys. Such surveys are expensive and access to them gives parties that are able to afford them a clear advantage over those which have no such access. It would be extremely important that the fruits of all such research were made equally available to all parties and that the EC ensures that it does not provoke allegations that it is unfairly privileging the ruling party. Again, its composition and method of appointment are almost bound to lead to such charges.

At present, with the 1999 elections still two and a half years away, such reservations may seem almost academic. It is safe to predict, however, that if the Electoral Commission Act is not amended its mistakes will return to haunt us. The most important question about 1999is not who wins the election but whether