The AIAC Podcast: "What Is Free and Fair?"

Date: October 21, 2024
Host: Will Shoki (Africa Is a Country)
Featured Segment: Just Us Under a Tree
Guests/Hosts: Tanvir Jiwa, Dan Mafora (hosts), Mudzuli Rakivane (guest)

Episode Overview

This episode explores the central question: What does it mean for an election to be “free and fair”? In the aftermath of South Africa’s May 29 elections—marked by new electoral rules, increased contestation, and mounting legal challenges—hosts Tanvir Jiwa and Dan Mafora are joined by civil and political rights expert Mudzuli Rakivane. Together, they unpack legal, practical, and philosophical dimensions of electoral fairness: institutional weaknesses, judicial oversight, the impact of irregularities, and the unique challenges faced in South Africa. Listeners are guided through first-hand accounts, deep legal analysis, and a healthy dose of irreverent humor.

Key Discussion Points & Insights

1. The Judiciary’s Role in Electoral Processes

• The judiciary’s reach extends well ahead of election day, often setting the landscape through judgments that shape electoral design.
• Discussion centered on the New Nation Movement case, in which the Constitutional Court forced Parliament to amend the Electoral Act, allowing independent candidates.
  • Dan Mafora (06:41): Critiques the court’s habit of declaring “legislative silences” unconstitutional, noting, “Is it unconstitutional because it’s silent or is that silence a legislative choice?”

2. The “New Nation” Case—Intent and Consequence

• Mudzuli Rakivane (11:36): Argues the New Nation Movement case was less about independent candidates and more an indirect push for a constituency-based electoral system.
  • Parliament’s compliance—allowing independent candidates but not true systemic reform—created practical inconsistencies (e.g., a confusing third ballot).
  • “If that many people are uneducated on the system itself and there’s that level of confusion… does that actually have an impediment on whether or not this [election] was free and fair?” [13:58]
• Introduction of the third ballot caused widespread confusion, raising questions about whether all voters truly understood their ballot choices and the impact on results.

3. On-the-Ground Observations: Election Day Irregularities

• Widespread discrepancies across ballots, e.g., the same party getting dramatically different results on national, regional, and provincial ballots, with no clear logical explanation.
• Capacity and technical issues:
  • Lack of adequate public education about new systems.
  • Frequent technical failures (devices, counting systems), with parties having to verify votes themselves.
  • Mudzuli (16:09): “The IEC just did not have the capacity and the systems… What you saw is political parties having to solve for X.”

4. Resource & Capacity Constraints

• Severe underfunding of the IEC (Independent Electoral Commission):
  • Limited staff and insufficient training led to long queues and slow voting.
  • Minimal public education efforts, mostly limited to social media.
  • Dan Mafora (22:52): “I kept saying we have a completely new electoral system… and there was basically no public education.”

5. Types of Irregularities and Their Consequences

• Mistakes like closing voting stations early, turning away voters, or missing ballot boxes, often traced to both poor training and lack of voter education.
  • Mudzuli (28:33): “If voters don’t know what their rights are and the rules are, then they’re unable to also hold people to account.”
• Reiterated that while some irregularities are expected, determining when they reach a threshold to affect “free and fair” status is complex.

6. Legal Standards: What Is “Free and Fair”?

• Section 19 of the Constitution safeguards the right to “free, fair and regular elections.”
• Section 110 of the Electoral Act: An election can only be set aside if mistakes or failures materially affect the result.
  • Philosophical debate: Do we care about strict numbers (“materially affect the result”) or about public perception and confidence?
• The Kham case (case law):
  • Four criteria for a “free and fair” election, including:
    • Entitled voters must be able to register and vote.
    • No one not entitled should vote.
    • Proper territorial registration for votes.
    • Rights to be a candidate and compete must be protected.
  • The Kham case emphatically states: “not a magic number test”—but a “material effect” test still makes numbers crucial.

[SELECTED QUOTE]

“Are we actually focusing on the number? …Do we care about …the outcome or do we care about whether it appears free and fair?”
—Tanvir Jiwa [42:50]

7. Systemic Design Flaws and Barriers

• Policies that effectively suppress or complicate voting, especially for migrant workers or smaller parties:
  • Stringent requirements to vote only where registered, introduced with little notice or education.
  • Difficult signature-gathering rules for candidates, which unfairly penalize those whose supporters are internal migrants.
  • Mudzuli (55:41): “If that is not a form of voter suppression, I don’t know what is.”
• Parliament’s deference to IEC’s administrative convenience often comes at the expense of democratic inclusivity.

[SELECTED QUOTE]

“IEC systems are designed to make the IEC's work easier. But Parliament is supposed to design legislation that works… what are the actual political democratic effects of what we're doing?”
—Dan Mafora [56:32]

8. The IEC, Discretion, and Accountability

• The IEC holds significant discretion in determining whether irregularities are “material”—a potential conflict of interest since it is both the organizer and judge.
  • Parliament is critiqued for abdicating its legislative duty by simply accepting IEC recommendations.
  • Reference to US “Chevron deference” and the problem of administrative agencies evaluating their own performance. [61:36]
  • Dan Mafora: “You can’t have the same people who want to be seen as having done a good job…deciding on the seriousness of the irregularities.”

9. The Role and Limits of External “Watchdogs”

• African Union and other observer missions can play a role but lack comprehensive insight for definitive judgments on electoral fairness.
  • There is potential for more effective and organized external oversight, but current structures are mainly ceremonial. [67:59]

10. When Would a Court Overturn an Election?

• Setting aside national or provincial results is extremely unlikely due to the high legal standard required and potential consequences for legitimacy and stability.
  • Courts tend to limit intervention to highly localized or clear-cut cases (as with local government elections in the Kham case).
  • Dan Mafora (74:14): “It almost seems impossible… even if you do find voting stations where things really went wrong… does that ultimately affect the outcome?”
  • At local government level, however, overturning results is more conceivable due to the smaller scale and tangible impact of irregularities.

11. The Importance of Both Reality and Perception

• A recurring theme: for democracy to be legitimate, elections must both be and appear free and fair.
  • The current legal standard only partially addresses widespread loss of confidence or subtle forms of disenfranchisement.
  • Final reflection from Mudzuli: “Once you declare an election not free and fair once, what does it do for the next election? So... probably not going to see that happen.”

Notable Quotes & Memorable Moments

• Mudzuli Rakivane on systemic confusion:

  “If that many people are uneducated on the system itself and there’s that level of confusion in terms of what the ballot means... does that actually have an impediment on whether or not this [election] was free and fair?” [13:58]

• Dan Mafora on legislative shortcomings:

  “My gripe actually isn't with the IEC... What I'm against is Parliament abdicating its duty.” [61:36]

• Mudzuli Rakivane on voter suppression:

  “If that is not a form of voter suppression, I don’t know what is.” [55:41]

• Tanvir Jiwa on rationality:

  “Practicalities aside, rationality, legal rationality... I couldn’t find a single note of rationality... The bar is on the floor.” [50:58]

• Final reflection (Wallace AJ in Kham, read by Tanvir):

  “It is insufficient for the court to say that it has a doubt or a feeling of disquiet or is uncomfortable... It must be satisfied on all the evidence placed before it that there are real... grounds for concluding that they were not free and fair.” [79:51]

• Tongue-in-cheek closing declaration:

  “We are officially declaring the 2024 national and provincial elections free and fair.” [81:10]

Timestamps for Key Segments

• [06:41] – Legislative silences and constitutional interpretation
• [11:36] – New Nation case fallout and its on-the-ground effects
• [13:58] – Ballot confusion and its impact on electoral fairness
• [22:52] – IEC funding and capacity constraints
• [28:33] – Election day irregularities (closing polls early, ballot boxes)
• [42:50] – “Magic number” vs. public perception in defining free and fair
• [55:41] – Signature requirements, internal migration, and voter suppression
• [61:36] – The IEC’s discretion vs. Parliament’s duties
• [67:59] – Role and limitations of external election watchdogs
• [74:14] – Court reluctance to overturn elections; high evidentiary threshold
• [79:51] – Kham case legal threshold on free and fair elections
• [81:10] – Sarcastic declaration: “Elections free and fair!”

Conclusion: So, What Is Free and Fair?

The episode concludes that, by current legal standards, South Africa’s 2024 elections—despite numerous irregularities, resource shortfalls, and design flaws—do not rise to the level of being declared “not free and fair.” However, the discussion casts serious doubt on the adequacy of existing rules to deal with profound systemic and perception-based challenges. The threshold for overturning elections remains sky-high—perhaps to the point of being almost unreachable.

Listeners are invited to reflect: If significant segments of the population are confused, disenfranchised, or simply don’t believe their vote matters, is procedural box-ticking good enough? The debate is ongoing, and South Africa’s democracy, while surviving another stress test, emerges with urgent questions about inclusivity, transparency, and reform.