Testing the Right to Vote in Free, Fair, and Regular Local Government Elections in South Africa: Challenges from the COVID-19 Pandemic

• Author: Felix Dube
• DOI: 10.25159/2522-6800/10125
• Published date: 01 June 2022
• Date: 01 June 2022
• Pages: 1-22
• publishedBy: UNISA Press

Article

Southern African Public Law

https://doi.org/10.25159/2522-6800/10125

https://unisapressjournals.co.za/index.php/SAPL

ISSN 2522-6800(Online), ISSN 2219-6412(Print)

#10125| 22pages

© The Author(s)2022

Published by Unisa Press. This is an Open Access article distributed under the terms of the

Creative Commons Attribution-ShareAlike4.0 International License

(https://creativecommons.org/licenses/by-sa/4.0/)

Testing the Right to Vote in Free, Fair, and Regular

Local Government Elections in South Africa:

Challenges from the COVID-19 Pandemic

Felix Dube

https://orcid.org/0000-0002-6490-4629

North-West University

Felix.Dube@nwu.ac.za

Abstract

This articleuses the doctrinal legal research method to examine the challenges

that faced South Africa in preparing for the 2021 local government elections.

The health risks posed by the COVID-19 pandemic led the national executive

to promulgate emergency health regulations and impose lockdowns to combat

the spread of the coronavirus. Inadvertently, these measures threatened the

freeness and fairness of the local government elections by restricting political

mobilisation and freedom of movement and association. They also led the

Electoral Commission to attempt, through an inquiry and a court application, to

postpone the 2021 local government elections. The discussion shows that

contrary to its contentions on the impossibility of holding the elections in 2021,

the Electoral Commission had unwittingly demonstrated that it was well-

prepared to mitigate the risk of COVID-19 infections. This articleconcludes

that a postponement of the elections was not warranted and would have led to

legitimacy and constitutional crises. It would have undermined the democratic

foundation of the South African Constitution and would have unlawfully

infringed on the right to participate in free, fair, and regular elections.

Keywords: Local government; right to vote; free, fair, and regular elections; COVID-

19; lockdown; South Africa

Dube

2

Introduction*

The COVID-19 pandemic threatens liberal democracy, the rule of law and other basic

tenets of constitutionalism worldwide.1The pandemic also presents unprecedented

challenges in conducting free and fair elections.2Some leaders have used it to stifle

democracy and human rights by postponing elections to ‘save lives’. At the time of

writing, more than 73 states worldwide had extended the terms of their leaders and

legislatures in various spheres of government by postponing elections in the name of

COVID-19.3Where elections have been held, populist leaders have denounced such

elections as not free and fair due to the challenges posed by COVID-19.4The

postponement of elections due to COVID-19 showsthat the pandemic is not merely a

health emergency but also a challenge to democracy. Hence, there is a need to carefully

balancethe right to health with democratic considerations and the right to vote.5The

experience of Ethiopia shows that postponing elections in the name of COVID-19 has

ramifications beyond the threats of constitutional crises: it could lead to civil unrest and

even civil war.6

At the time of writing, South Africa was scheduled to hold local government elections

for the election of municipal councils on 1 November 2021. However, there were

attempts to postpone the elections to February 2022. This article uses the doctrinal legal

research method to analyse the legal challenges that faced the holding of the 2021 local

government elections.7The analysis shows that the COVID-19 pandemic and the health

risks it posed werenot justifiable excuses to postpone the elections. It also shows that

contrary to its contentions on the impossibility of holding the elections in 2021, the

* This article is based on research conducted with the financial support of the National Research

Foundation (grant no 115581). All views and errors are the author’s own.

1 Kevin Arceneaux and others, ‘Is COVID-19 a Threat to Liberal Democracy?’ 1

8e4pa/download?format=pdf> accessed 16 September 2021.

2 See Toby S James, ‘New Development: Running Elections During a Pandemic’ (2021) 41 Public

Money & Management 65; Todd Landman and Luca Di Gennaro Splendore, ‘Pandemic Democracy:

Elections and COVID-19’ (2020) 23 Journal of Risk Research 1060.

3 Olivier De Schutter, ‘Foreword’ in Morten Kjaerum, Martha F Davis and Amanda Lyons (eds),

COVID-19 and Human Rights(Routledge 2021)xvii.

4 See Martin Scheinin and Helga Molbaek-Steensig, ‘Human Rights-Based Versus Populist Responses

to the Pandemic’ in Morten Kjaerum, Martha F Davis and Amanda Lyons (eds), COVID-19 and

Human Rights (Routledge 2021)29–30.

5 Khabele Matlosa, ‘Elections in Africa During COVID-19: The Tenuous Balance Between Democracy

and Human Security’ (2021) 48 Politikon: South African Journal of Political Studies 159.

6 See Declan Walsh and Abdi Latif Dahir, ‘Why is Ethiopia at War with Itself?’ (The New York Times,

2020) es.com/2020/11/05/world/africa/ethiopia-tigray-conflict-explained.html>

accessed 16 September 2021for a discussion of Ethiopia’s descent to civil war after the federal

government postponed elections on the pretext of COVID-19.

7 The doctrinal legal research method entails the analysis of primary and secondary sources of law

such as statutes, case law, and scholarly works such as books, journals, and other periodicals. See

Terry Hutchinson and NigelDuncan, ‘Defining and DescribingWhat We Do: Doctrinal Legal

Research’ (2012) 17 Deakin LR 83for a discussion.