IEC barrier tape at a voting station.
Sharon Seretlo, Gallo Images
The Council for the Advancement of the South African Constitution says the Constitutional Court has no legal basis to stop municipal elections from going ahead.Casac argues that the IEC is trying to get out of its constitutional obligations.The IEC has approached the court seeking a postponement of the October 2021 election to early 2022.The Council for the Advancement of the South African Constitution (Casac) says the independent Electoral Commission’s (IEC) application to postpone the local government election is an “attempt at backsliding out of constitutional obligations”.
According to Casac, the IEC bases its court application on the strength of a claim of “self-created” impossibility.
The organisation submitted its court papers as amicus curiae, in the IEC’s application to the Constitutional Court seeking a postponement of the October 2021 election to early 2022.
“There is good reason to resist this based on principle and to avoid [a] disastrous precedent,” Casac argues.
READ | Postponing local elections guaranteed to lead to weakened Constitution, DA warns IEC
In its papers, Casac argues the Constitution is sacrosanct and guarantees the country’s electoral framework to ensure accountability.
“If it is changed, as the IEC invites this court to do, this court would undermine the very solemn pact in an unlawful manner. As pragmatic (or cynical) as the application appears to be, the warning Casac sounds is that if this court were to grant it today to the IEC, tomorrow the impossibility doctrine will be invoked to alter another provision of the Constitution to avoid another difficult obligation that it imposes on another organ of state,” it said.
Casac further argues that granting the IEC relief it sought could have disastrous constitutional implications.
Not only would this subvert the Constitution in effect, it also would result in this court violating the carefully crafted separation of powers contained in the Constitution, because this court would usurp and perform the role of Parliament to effect impermissible constitutional changes that weaken the provisions of the Constitution.
Earlier this month, the IEC urgently applied to the apex court to postpone the upcoming elections.
It wants the elections to be held next year instead, and has suggested 23 February 2022 as a date.
Electoral bosses are concerned about holding elections while the country grapples with the Covid-19 pandemic.
The matter stems from the findings of an inquiry conducted by retired Deputy Chief Justice Dikgang Moseneke on the feasibility of conducting elections amid the current third wave.
This week, the Constitutional Court gave the green light to the ANC, IFP, DA, African Transformation Movement, Forum 4 Service Delivery, Makana Independent New Deal, and One SA Movement to be intervening parties in the IEC’s court application.
This paves the way for other interested parties to ventilate their issues in court regarding the postponement of the local government elections.
READ | IFP seeks leave to intervene in IEC elections postponement ConCourt application
Casac also argues that the apex court cannot do what the IEC asks it to do.
“It also should not try to do what the IEC asks it to do because there is no principled basis to limit this precedent to the circumstances of this case. Tampering with the obligations imposed by Section 159 [of the Constitution] on the IEC will invite other state litigants to approach this court to avoid their obligations in turn,” it said.
Casac has pleaded with the court to uphold the Constitution and refuse the IEC’s application.
“Local government elections will then be held in October 2021 and the IEC will be left with no choice but to perform its duties and functions as capably as it is able to,” it said.
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