Elections are fairly free, but hardly fair
The abundance of electioneering activity in South Africa in the run up to the municipal elections scheduled for 18 May, 2011 brings the constitutional requirements for elections into sharp focus. The right to vote is the primary means by which ordinary people get to participate in the nascent democracy being forged under our new dispensation. People get a say in what comes their way by voting for the candidates and party of their choice. In municipal elections, unlike those for parliament and provincial councils, there are both constituency (or ward) candidates and party list candidates. So, it is possible to vote for an individual rather than for a faceless person on a party list drawn up at the behest of party bosses.There is a proliferation of posters on poles, tee shirts emblazoned with the messages of the parties and the handing out of food parcels to induce those in need of encouragement to stir themselves to actually vote. The rallies and dancing, canvassing and contestation, radio ads and television time all seem to suggest that democracy is alive and well and indeed thriving in our new democratic order.
The Electoral Commission is given the constitutional obligation to "ensure that [municipal] elections are free and fair." Every citizen, according to our state of the art Bill of Rights, is free to make political choices, these include the right to form a political party, participate in its activities and recruit members; to campaign for a political party or cause; to vote in secret and to stand for public office. The Bill of Rights also reaffirms the right to free, fair and regular elections.
With 121 political parties and 53,596 candidates contesting 10,055 seats, it appears that the freedom to participate is being well exercised. There is no compulsion to vote. Those who choose not to do so are not penalized; their only jeopardy for non-participation is that those who stay away can hardly be heard to complain with any credibility about the quality of the successful parties and candidates.
A disturbing feature of our new democracy is that more people have elected not to vote than vote for the tripartite governing alliance. This huge group consists of the disengaged, the disinterested and those who are disabled, through poverty or illness, from making the effort to vote. All major political parties seem to be content to vie for the attention and vote of those who are participants; they appear to have collectively written off the non-voters on the perhaps questionable supposition that it is too difficult to change that non-voting habit.
It is in the realm of the fairness of elections that the biggest question mark needs to be raised. A fair election is surely one in which all of the candidates have a reasonable opportunity of persuading the constituency to vote for them. Judging from the hugely disproportionate number of posters, tee shirts, food parcels, advertisements and rallies which the governing alliance has put into the field, with a bling blighted flourish, it is apparent that it has access to resources that other political parties can only dream of laying their hands on. This has the tendency to make the political playing field somewhat less than level. No opposition party has the wherewithal to offer a R100,000 prize in an election song contest, as the ANC has done.
The culture of cronyism, political patronage and cadre deployment that has developed in the new South Africa is at least in part to blame. We have not taken the trouble to regulate political party funding. True enough, the state does make some funding available to political parties in proportion to the amount of support they have gleaned in previous elections. For the rest of their funding, the parties compete in an unregulated jungle in which secrecy and skulduggery are the order of the day.
IDASA tried to address this several years ago by litigating for accountability, openness and transparency in political party funding. The case ended on the happy note that the matter was one for the legislature, not the judiciary, and that steps would be taken to put in place a fair system of regulation of the funding of political parties. The only problem is that nothing has been done to achieve this noble goal. Posturing and pontification is plentiful, progress toward finding fairness in the funding of election campaigns has not yet occurred.
How this has come about is a study in the betrayal of the lofty ideals for which so many struggled in order to create a viable new social order. Dignity for all, the achievement of equality and the enjoyment of freedom have been sacrificed on the altar of political expediency. It all started with the 1999 general election. According to Andrew Feinstein, who was then an ANC member of parliament, its election campaign was paid for out of the proceeds of bribes paid by European arms dealers who successfully tendered to supply armaments to the country. As it is estimated that bribes of about R 2,1 billion were paid, the opposition parties were ill-equipped to match the vote gathering activities of the alliance.
Since then things have become considerably more sophisticated and remunerative. The ANC has an investment arm, called Chancellor House, which sees nothing wrong in participating in public procurement contracts. It is a 25% shareholder in Hitachi Power Africa. According to William Gumede of the Graduate School of Public and Development Management at Wits: "Hitachi has been awarded a contract by Eskom to supply and install boilers for power stations. The ANC's stake in the deal through Chancellor House was estimated in 2008 to be R5.8 billion. For the sake of transparency, accountability and clean governance there has to be a firewall between the ruling political party and its leaders on the one hand, and state and private companies, on the other."
At a recent workshop on the Constitution, Valli Moosa, a former ANC cabinet minister and former chair of Eskom, was asked how, in the light of all this, it can ever be possible to hold any fair elections in the country. He gave a long and rambling reply which revealed that legal advice on the propriety of the Eskom deal was mystifyingly taken from accountants, but did not answer the question. This is perhaps because there is no satisfactory answer to it.
The murky waters of endemic corruption in which a large part of the body politic of SA swims are seldom as revealed as they became when a call for donations to the ANC, addressed to contractors to his municipality by the Mayor of Hessequa, Christopher Taute, was made public in January.
Despite his denials of misconduct, the wording of his request for funding leaves it beyond doubt that the thin ice on which he was skating can not support the thrust of his claims of innocence. There is no possible nor plausible innocent inference to be drawn from the words: "As you currently have contracts with our municipality - which were made possible by this ANC-run council, I would like to make a friendly request that you contribute a donation to the ANC for the election campaign, in order to continue building on your good relations with this ANC-run council" The vital dividing line between party and state, to which Gumede refers, is rubbed out in this single sentence.
It is high time that the Electoral Commission took a long hard look at the illegal goings on of this kind. Until they are comprehensively addressed there can be no fair elections.
Paul Hoffman SC
29th April, 2011
