DOES THE IEC’S PRONOUNCEMENT ON ZUMA RAISE AN ALARM ABOUT ITS CONSTITUTIONAL COMPETENCE AND INDEPENDENCE?
By Paul Ngobeni – A legal analyst with a Juris Doctor degree from New York University.
All political parties and citizens who value the constitutional independence of the Independent Electoral Commission (IEC) must be alarmed by the IEC’s latest unwarranted and unsolicited pronouncement on the eligibility of former president Jacob Zuma for a seat in parliament and ultimately the position of president of the country. As reported in the newspapers, the IEC pronounced that “former president Jacob Zuma cannot be the president of the country after this year’s general elections because of his criminal record.” The “electoral body cited Section 47(e) of the country’s Constitution, which bars anyone who was convicted and sentenced to more than 12 months imprisonment, without an option of a fine, from holding public office.” The IEC said the following:
Section 47 of the Constitution provides that:
(1) Every citizen who is qualified to vote for the National Assembly is eligible to be a member of the Assembly, except anyone who, after this section took effect, is convicted of an offence and sentenced to more than 12 months imprisonment without the option of a fine, either in the Republic, or outside if the conduct constituting the offence would have been an offence in the Republic.
Therefore, this provision renders Former President JG Zuma disqualified to be on the list of any party contesting an election or to contest as an independent in the upcoming 2024 elections.
The IEC’s pronouncements are highly disconcerting for a number of reasons and are based on a misreading of existing laws, including the Constitution. For starters, the Constitution requires that a person is “convicted of an offense” before the disqualification kicks in. Black's Law Dictionary defines conviction as follows: “In a general sense, the result of a criminal trial which ends in a Judgment or sentence that the prisoner is guilty as charged.”
It is incontestable that Zuma was never subject to a criminal trial. Further, contempt of Court is divided into two categories namely, civil contempt and criminal contempt. The case which resulted in Zuma’s incarceration was a civil case of Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Jacob Gedleyihlekisa Zuma [2021] ZACC 2. The state capture Commission approached the Constitutional Court in December 2020 on an urgent basis for an order that would compel Zuma to co-operate with the Commission’s investigations and objectives. The Constitutional Court ruled in favour of the Commission and ordered Zuma on 28 January 2021 to attend the Commission and to give evidence before it, compelling him to attend the Commission from 15 February 2021 to 19 February 2021. Zuma was incensed by the order and subsequently released a public statement harshly criticising both the Commission and the Constitutional Court, stating that they were victimising him through exceptional and harsh treatment, and were politicising the law to his detriment. Zuma. Through his legal representatives Zuma informed the Commission that he would not be appearing before the Commission as ordered by the Concourt. In the Concourt there was no doubt or dispute about the civil nature of the proceedings. Ordinarily, a person guilty of contempt of court is very rarely given a punitive order of direct committal, but is rather given a coercive order instructing them to comply with whatever order they failed to comply with initially.
In the Majority Judgment Khampepe J held that a coercive order would not be appropriate for Zuma and would likely be a “brutum fulmen” or an empty threat. Khampepe J took into account several aggravating circumstances such as the public statements made by Zuma in which he made several inflammatory statements perceived as intended to undermine the judicial system, the continuous disobeying of court orders, the attacks on the judiciary and its members, and the fact that he was not an ordinary litigant but the former President of the Republic. It is for these cumulative reasons that Khampepe J ultimately made the punitive unsuspended order of imprisonment against Zuma. But that begs the question – given that Zuma was never subjected to a criminal trial and was never “convicted” of an offense within the meaning of the Constitution can his incarceration resulting from civil contempt proceedings count as a “conviction” of an offense under Section 47 of the Constitution?
The answer is definitively in the negative. This is made clear by the Minority Judgment by Theron J which dealt mainly with the unconstitutionality of imposing a purely punitive order of unsuspended committal in the context of civil proceedings, without any remedial objective. As Theron J explicitly asked: “can the civil, remedial element of civil contempt proceedings be abandoned in favour of a wholly punitive approach?”. Theron J shared the view that Zuma was in contempt of court but she considered it unconstitutional to grant an order of unsuspended committal if the committal is not aimed at coercing the accused to comply with a court order, highlighting that such an order (of unsuspended committal) had never before been handed down by the court in respect of contempt. Theron J explained that the ordinary remedy in civil contempt cases where a litigant is found guilty of civil contempt is always a period of suspended committal, which then provides the contemnor with a final opportunity to comply with the court order and to avoid imprisonment. In my view the basic constitutional requirement of being “convicted of an offense” within the meaning of Section 47 of the Constitution was never met. It is mind-boggling how the IEC reached the erroneous conclusion that Zuma was precluded by the committal from civil contempt proceedings from being a member of parliament or the president if elected.
The IEC was presumptuous in interpreting the Constitution without proper legal guidance or advise. In criminal law, there is a rule of lenity, also called rule of strict construction, which states that when a law is unclear or ambiguous, the court should apply it in the way that is most favorable to the defendant, or to construe the statute against the state. In Zuma’s case, the principle of strict construction applies and the word “convicted of an offense” must be confined to strictly criminal proceedings. The IEC’s reference to Zuma’s “criminal record” is fallacious and meritless.
Our constitution created the IEC as a Chapter 9 institution "State Institution[ ] Supporting Constitutional Democracy."' Further, the constitution specifies three important features of the IEC. First, section 190 of the constitution, which defines the functions of the
IEC, gives the body an executive, rather than a judicial, role. Section 190 lists the functions of the IEC as managing elections, ensuring they are free and fair, and declaring results. Section 190 also allows national legislation to prescribe "additional powers and functions." By limiting the IEC to an administrative role, the constitution avoids the problem of the IEC having overbroad powers that allow the IEC to insinuate itself in party political contestation matters. It was both premature and presumptuous for the IEC to decide the issue of Zuma’s candidacy even before his party MK has submitted a list of its candidates it intends to send to parliament.
The IEC simply overlooked the judgment In Kham and Others v Electoral Commission and Another [2015] ZACC 37 where the Concourt ruled that “…the Constitution protects not only the act of voting and the outcome of elections, but also the right to participate in elections as a candidate and to seek public office.” Additionally, the IEC forgot that the Electoral Court’s jurisdiction to review any decision of the IEC relating to an electoral matter affords the Electoral Court a power of judicial oversight over the activities of the IEC. The Electoral Court can examine any decision by the IEC and substitute it with its own. Certainly all the issues arising in the Mk and Zuma case relate to electoral matters and are fundamental to the electoral process and the conduct of free and fair elections. In addition to this broad power of review, the Electoral Court may hear an appeal against any decision of the IEC insofar as that decision involves a question of law or is provided for in any law. But the IEC has muddied the waters and upended the process by making a ruling before the MK party has even submitted a list with Zuma as its nominated candidate.
The IEC gives the unfortunate impression of de-campaigning the MK p[arty and Zuma as its potential candidate. That is contrary to Section 195 of the Constitution and the IEC Code of Conduct which require IEC employees to be apolitical, impartial and that they take reasonable steps to avoid conflicts of interest. In the context of the statutory functions given to the IEC in relation to the conduct of elections, the IEC and its employees must be, and must be seen to be, impartial and politically neutral and must, at all times, behave in a way that upholds both the Constitution and Code of Conduct. This means the IEC must always
ensure that its staff are politically neutral and help all voters in a fair and unbiased manner. The IEC must also avoid any actions that could make the IEC appear biased in any way. It must also ensure all of its employees are competent and act in line with their Code of Ethical Conduct at all times. Unfortunately, the IEC appears to be faltering and has opened itself up for criticism for playing to the public gallery and seeking media celebrity status at the expense of the constitutional rights of our citizens. Above all else, the erroneous interpretation by the IEC also reflects the flaws in the original court judgment where the justices appear to have based their judgment on their own anger and malice without regard to the criminal laws of this country.
