Former Deputy Chief Justice Dikgang Moseneke issued a non-binding report to the Independent Electoral Commission calling for municipal elections to be postponed from October this year to February 2022. It is irrational, its advice will launch South Africa onto a slippery slope of interminable vote looting.

Moseneke is an intelligent man of integrity. He surely tried his best. In his own words the report was filed “in haste”. Reflection will show this to be costly.

I will grant, arguendo, that the Constitution’s plain instruction to hold national municipal elections by no later than 1 November 2021, can theoretically be exploded. On the legal points Moseneke’s arguments strike me as flawless, on the facts just the opposite.

The answers to two questions will show this. 1) Will SARS-CoV-2 be less of a threat in February 2022 than in October 2021? If Moseneke failed to give reason to think the answer is “yes” his report is irrational.

2) What level of threat does the virus pose in October 2021 and to what extent can that be managed by common sense protocols? This comes to a matter of reasonableness, what is a reasonable risk in which to hold elections.

October vs February

Whether Moseneke thinks of the virus as a hellfire plague or an overblown flu the first question his recommendation has to answer is whether Covid-deaths will be better or worse viz-a-viz a February 2022 election or an October 2021 election. Because we do not know the future yet, this must be answered on the basis of the risk assessments and evidence provided.

“Some stakeholders have urged us to find and follow medical science and others have scoffed at reliance on science” he wrote. Moseneke says he “chose to heed the science”.

What did “the science” say? “Prof Abdool Karim maintained that the best time to hold local government elections ‘is now’, meaning October 2021, rather than three months later” as Moseneke put it.

Likewise, Professor Shabir Mahdi projected that based “on past patterns with waves 1 and 2, it may be that October 2021 is a period of relative calm, with a resurgence in December 2021 onwards”.

Right To Care (a medical NGO) found the “potential for cases to be low in the October period”. Its submission furthermore concluded that several countries have held elections during the pandemic in which “most” studies show “that if risk mitigation measures are put in place…the risks of acquiring infections from election polling can be reduced.”

In laymen’s terms, “the science” says postponing the election probably means sending us to vote in the teeth of a new, more dangerous strain, while the “right now” option offers reduced risks we can manage, just like over 100 other countries have done.

Moseneke found against this. Doctor Fareed Abdullah, in Moseneke’s paraphrase, showed that, “Conducting elections in February-March 2022 will certainly save more lives than in October 2021, because of higher levels of vaccination.”

Except Dr Abdullah never wrote anything of the sort. “Certainly” is not a word that appears in his submission, which starts by saying that predictions “must be done with both caution and spades of humility”.

Worse than that Dr Abdullah’s written submission offers no written opinion whatsoever as to whether February is likely to be safer than October. Instead, the conservative doctor suggests, “that the elections be postponed to a time in the future when there is demonstrable decrease of severe disease, hospital admissions and deaths as a result of high coverage of effective vaccines.”

If Moseneke took Dr Abdullah seriously he would not say the election should be postponed until February. He would say, as Dr Abdullah did, that the election should be postponed until the government is rolling out 300 000 vaccines per day, for a sustained period, and then after deaths have been proved to be reduced significantly as a result, which will require going through at least one more wave start to finish.

Moseneke’s misleading claim that postponing the election to February “will certainly save more lives…because of higher levels of vaccination” is his own inference, not “the science”, and it is a false inference at that.

In overriding Professor Karim and others by saying things will “certainly” be better in February Moseneke “scoffed at reliance on science” by making the laymen mistake of confusing a ceteris paribus claim with a holistic prediction that the vaccination rate will outweigh the mutation rate for which he does not, and cannot, offer any basis, and then imputing his fabrication with “certainty” unto an expert who could not make that mistake.

The “final” and only independently accessible “expert view” Moseneke offers to support his recommendation is “that of Dr Buthelezi of the Health Department who warned against election gatherings and campaigning during October 2021, and that community immunity through vaccination will have been reached by February 2022 when approximately 40 million of the population would have been vaccinated”.

That is not a joke, but it is sickly misguided. Moseneke does not believe it, as he points out repeatedly, so it cannot be the basis of his recommendation. Polls indicate that about 40% of South Africans do not want to be vaccinated, and Department of Health records show that only 6.3 million have registered out of a population of more than 22 million who are eligible. Not one word about vaccine hesitancy is mentioned in Moseneke’s 120-page report, another indication of its profoundly distracted “haste”, but that is an aside.

Moseneke elsewhere acknowledges that the virus is likely to be spreading death for years and proposes a lengthy parliamentary process to deal with this later. Outside Dr Buthelezi all medical submissions indicate “community immunity” will not be reached by February next year so, the question stands as a matter of degree, do we have a better chance with an October election or one in February?

The only expert assessments to account for viral mutations say do not postpone. Moseneke says the opposite. Had Moseneke at least suggested what level of vaccination he believes will be achieved in the three months after October and then weighed this against the mutation risk he might have spared himself the charge of irrationality, but he did not. Instead, he rested his argument on the “certainty” that every day that even one vaccine is administered the virus gets less dangerous.

This is irrational and not just wrong, and completely out of sorts with experience of SARS-CoV-2. A rational cost-benefit analysis weighs the relative costs of October (fewer vaccines) with the benefits (periodicity, no likely mutation) versus three months later. But Moseneke only weighed the benefit of more vaccinations later to claim “certainty” that February will be better, which fails to formulate a cost-benefit analysis, failing which he cannot claim to have even tried to show that a February election will save any lives.

Now or Never?

If the first question is about relative risk, the second is about absolute risk. How many people would actually die if we had an October election?

Moseneke offers no scientific estimate, or any estimate at all. He just says the election must be postponed and that “postponement should be no longer than is strictly and reasonably necessary to save lives and limbs.”

If it is “reasonably necessary” to save one life by postponing the entire election then his directive is effectively to postpone this election forever, as long as people die on the roads on the way to hustings and polls or attend rallies that could turn lethally violent.

That is obviously unreasonable (and as it happens irrational too). For the advice to be reasonable it would have to say something about what standard of “reasonableness” is “reasonably necessary” to stop deaths, versus what risks are hard and “reasonably necessary” to stop an eternal loot of the vote, and what actual assessment of risk is in play to show which side of the line October falls.

Moseneke provides no estimate, scientific or otherwise. I hesitate to guess why, but few retirees are keen to say something like “if a million will die, that’s too much, but if it’s only 50 we must recognize that freedom is never free”. Whatever the reason Moseneke did not apply his mind, in writing, to the question of what risk is reasonable to tolerate. That is a disappointment, from the once brave justice.

International Experience

Nor did Moseneke apply his mind to international experience. Only two “instructive” case studies after the first wave are offered in his report, India and the US. Moseneke could not find a single peer-reviewed scientific article to support his laymen’s view that elections killed through spreading Covid-19 in either case.

In the case of the US at least Moseneke found a “working paper” (by economists, written in October 2020) purporting to show that “Trump rallies” were deadly. Notwithstanding US political agendas at that time, if Moseneke had googled the working paper (later published on a science-poetry-cum-self-help site that advises against suicide) he would have found the top hit from Reuters, titled “Are Trump’s rallies really spreading coronavirus? Why it’s hard to know the full impact” with a quote from Dr Amesh Adalja downgrading the research to merely “suggestive” with some indications why it fails to prove anything. (Clue, “we’ve not done anything to get real numbers” said Dr Eric Topol, a genomics expert).

Moseneke said the same study “confirmed” 700 deaths were due to Trump rallies, again “scoffing” actual science in favour of his own trumped-up opinion.

Meanwhile Moseneke conceded that “in countries such as South Africa, Egypt, and Ghana, where mandatory Covid-19 protocols were put in place, and properly enforced, there were no reports of a spike in Covid-19 infections because of the elections”.

Moreover, since the pandemic, he noted “14 countries and territories on the African continent have decided to postpone national and subnational elections due to Covid-19, and at least 28 countries decided to proceed with elections despite the Covid-19 pandemic”. Those who postponed include Zimbabwe (which at least did not pretend to set a later date for scheduled by-elections but admitted the delay is indefinite) and Ethiopia which hops in and out of civil war.

Globally, “At least 41 of these countries postponed national elections and referendums. However, at least 55 [of 78] countries that initially postponed elections have now held elections. In the same period, at least 125 countries held elections notwithstanding Covid-19 concerns. At least 104 countries held national elections and referendums.”

Moseneke could not find one peer-reviewed scientific study to show that any of these 104 countries increased deaths. While the actual studies, noted by Right to Care, escaped his careful attention.

Covid Fatigue

The phrase “Covid-19 fatigue” is mentioned several times to suggest that the longer the virus is around the less willing people are to alter the normal course of their lives to stop its spread. Not once does Moseneke take this into account as another reason to suspect that delay will only make things worse.

Politics Without Votes

Moseneke is a good man, who came to a profoundly wrong conclusion, but at least he observed that his proposal “may encourage or initiate a slippery slope that might undermine the democratic project. We think this argument has considerable force.”

To guardrail the slope he recommends the election is postponed “only once, and to the earliest possible date…without excessive loss of life”. That guardrail is as strong as the evidence, rational connections, and reasoned discursive practice out of which it is made. In other words, it is as firm as pixie-dust.

Since Moseneke fails to show that February 2022 will be any better than October 2021, while “the science” presented to him shows it is likely to be worse, and since he fails to even sketch a view on what constitutes “excessive loss of life” and what is tolerable (like car accidents on the way to polls) Mosekene’s argument does only one thing. It gives an excuse to postpone the election as long as the virus is around, which is likely to be a lifetime on the best available evidence, and as long as more than 20 million South African adults are unvaccinated, which will be the case “until Jesus comes”.

If the election is postponed once on an irrational basis there is no reason to think it will ever be held.

The views of the writer are not necessarily the views of the Daily Friend or the IRR

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