Cooperative governance minister Nkosazana Dlamini-Zuma created a constitutional crisis by shutting the voters’ roll before the promised registration weekend. Why did she disenfranchise people? She told the public one reason, and the ConCourt another.
On 3 August Dlamini-Zuma proclaimed the 2021 national municipal elections. She said she had to do so to allow the Electoral Commission (IEC) to send papers to the Constitutional Court on 4 August. Amazingly, almost everyone believed her. But did she believe herself?
First, recall what she said: ‘The proclamation of the date is so that there is a date that is proclaimed’. The video links are timestamped so you can check for yourself. ‘When the [IEC] goes to court it must say it is postponing the date that have been proclaimed [sic]’.
If that is a bit garbled, Dlamini Zuma went on to explain that the IEC ‘has to go to court, to the Constitutional Court, to request for the postponement. But the [IEC] can’t also request for the postponement for an election that has not been proclaimed. So, the election must be proclaimed.’
Her Deputy Minister, Obed Bapela, said the same thing that fateful evening – ‘if there was no proclamation, they will not be able to go to court’, so the proclamation is ‘helping’ the IEC ‘to go to court’.
The ANC, through national spokesperson Pule Mabe, said the proclamation ‘is an important legal requirement, which will enable the Independent Electoral Commission to approach the courts to postpone’.
In contrast, we supplied material and legal facts, run by Politicsweb and the Daily Friend. I was invited onto SAfm, some smaller stations, and a heated (enlightening) Newzroom Afrika debate to raise these points – but most people remained blissfully unaware of the fact that Dlamini-Zuma spewed misinformation at the proclamation presser. Curiously, Dlamini-Zuma was not one of them.
She, in fact, knew all along that she was misleading ‘our people’. In a letter dated 1 August she said: ‘I have been advised that the [IEC]’s application is not dependent upon me first proclaiming a date in October 2021’ [emphasis added].
I will return to the thought that she may have changed her mind between 1 August and 3 August, but for now observe that saying the opposite to what one knows to be true is lying. The immediate effect of telling this lie was to dodge the allegation of vote-stealing tyranny in the mainstream and avoid the question, ‘How dare you disenfranchise South Africans to break our election cycle?’
The legal problem is that Dlamini-Zuma and the IEC are obviously not allowed to disenfranchise people in order to launch a court appeal. If she was telling the truth on proclamation day she was confessing a major illegal act, a dereliction of her duty, and grounds for immediate dismissal. That is one reason why it is amazing that so many journalists accepted her at face value. It is also why our attorneys immediately sent letters questioning the Minister.
Hence also the need for Dlamini-Zuma’s counsel, Ngwako Hamilton Maenetje SC, to make the argument before the ConCourt that Dlamini-Zuma must have known what she was saying was false. This meant Maenetje showed his client off as a liar to prove her ‘bona fides’. Even by ANC standards that oxymoron is incandescent.
Bizarrely, the argument could still work if the court is unaware of Dlamini-Zuma’s press briefing, which it may well be. The court is not obliged to engage mainstream media, while the relevant journalists apparently have no idea what Dlamini-Zuma’s representations were in court.
For the argument to really work, however, Maenetje also needed to convince the court that Dlamini-Zuma had other, real and good reasons to proclaim on 3 August. He tried nobly to argue that she could not wait any longer because she needed to ‘allow enough time’ for the IEC to prepare, but this path had been ruined by the IEC’s oral evidence moments before.
The IEC had just shown the court that it could have run a registration weekend on 7 and 8 August (because that was lockdown level 3) and that Dlamini-Zuma could have proclaimed on 9 August, which is 84 days before the deadline (the IEC said it only needs 82). The IEC also proved in July that it could reschedule a registration weekend at the last minute.
With the reason given to the court for the 3 August proclamation flopping limply, Dlamini-Zuma stood exposed before the illegal reason she gave the public that night. How to save her from herself?
Maenetje drew attention to the 1 August letter ‘in which the Minister makes it clear that in her discussions with the [IEC], and from the information she received from the legal advisors, she was advised that the [IEC] did not require her to proclaim the date of the election in order for [it] to approach the court. Now, once one accepts that, it is impossible to postulate that she proclaimed the date to allow the [IEC] to come and make the case it is making.’
What matters here is that Maenetje’s argument is about his client’s motive, which means representing her subjective beliefs rather than what is objectively true. To wit, Dlamini-Zuma could not have been motivated to pry the court’s door open via a premature proclamation, because she was shown that the door already lay ajar.
In making this argument to the apex court Maenetje shut down the possibility that his client heard the legal advice but did not believe it, and shut down the possibility that she changed her mind by 3 August.
So, unless Dlamini-Zuma goes after her own counsel, she demonstrably lied while proclaiming nationwide elections. The only other alternative is that she deliberately misled the apex court. To paraphrase her own counsel, ‘she is damned if she lied to us, and damned if she lied to them’.
Many will say ‘she lied either way, who cares, this is unsurprising’. This lie is brazen, and it involves the discharge of a constitutional duty, and yet I agree that this is not the worst of it all. The worst of it lies in answering the question that has loomed throughout: how dare she deny hundreds of thousands the vote?
Since Dlamini-Zuma could not have been motivated by a desire to ‘allow enough time’ for prep-work, or by a belief that she needed to open the court’s already open door, why did she proclaim that night?
The only possible answer is that before the IEC entered the open door she knowingly thrust a gun in its left hand and matches in its right so that it could knee-cap justice, burn chapter 1 of the Constitution, break the election cycle, and give the ANC another last chance at ‘unity’.
The barrel of a sham
For the IEC’s main deadline-shredding argument to work the court must believe a constitutional election is ‘certainly, absolutely impossible’, regardless of what anyone wants or does. But the IEC had to concede that such ‘certainty’, if it exists, does not come from Covid-19, which experts have said is currently, and will likely remain, at a manageable level.
So, the only ‘certain impossibility’, as things stand, comes from the premature so-called ‘proclamation’, really the tyrannical night of disenfranchisement.
Still, a single basis of ‘certain impossibility’ was enough in the hands of the IEC to bash the court into hours of deliberations about what it can and cannot do while ‘staring down the barrel of a sham’. The court was staring down just such a barrel, the sham happened, it was televised, unquestioned, and on the other end was Minister Nkosazana Dlamini-Zuma, grinning.
Dlamini-Zuma provided a reason to argue legal ‘impossibility’, but she also made it practically unfeasible to have a registration weekend anytime in August. This puts part of the process back at least a month. That in turn puts the court in the difficult position of having to figure out if it can order a September registration for an October election.
If this can be done, and a study of earlier IEC timetables and court papers shows that it can, the court still has to face the fact that a derelict IEC told it that ordering it to do so would be a ‘recipe for disaster’ and effectively urging that if Covid-19 is not enough of an excuse to burn the constitutional deadline, then Dlamini-Zuma’s illegal decision to disenfranchise ‘our people’ is the match the court must strike.
On disenfranchisement night, Dlamini-Zuma said ‘we all play our part’ in breaking the election cycle. That bit, at least, was true.
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