IEC vs MK party in ConCourt showdown ahead of May elections

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The Electoral Commission (IEC) and the uMkhonto we Sizwe (MK) party will face off in the Constitutional Court one last time before the May elections.

The apex court is tasked with bringing finality to the issue of former President Jacob Zuma’s eligibility to stand for public office by clarifying the correct interpretation of Section 47(1)(E) of the Constitution.

This will not only inform the upcoming 2024 polls but future elections.

Retired Constitutional Court Judge Sisi Khampepe said, “I am left with no option but to commit Mr Zuma to imprisonment with the hope that doing so sends an unequivocal message, in this our Constitutional dispensation, the rule of law and the administration of justice prevails.”

In June 2021, former President Jacob Zuma was given a sentence of 15 months imprisonment by the Constitutional Court for contempt of court after defying its order that he appear before the Zondo Commission.

The granting of medical parole, subsequent court action that invalidated it, and the granting of a special remission of sentence led to Zuma effectively being a free man after serving three months in custody.

A couple of years later, he would be central in the formation of the Umkhonto We Sizwe party to the extent that he was ranked number one on the party’s candidate list.

His 15-month sentence would rear its head again and lead to the disqualification of his candidature following objections due to his sentence.

Mbekezeli Benjamin from UCT’s Department of Public Law says, “That prison sentence started in July 2021 and ended in October of 2022 and that, because it only ended in 2022, he is disqualified for the next 5 years. So he can only become a member of parliament after the five years is up which is about 28 or 2027.”

Zuma, however, would successfully challenge the disqualification of his candidature based on section 47 (1) (e) of the constitution in the Electoral Court.

The Electoral Court would rule in his favour, finding among other things, that the section in question did not apply to the president because his sentence was not appealable.

The specialist court noted that the drafters of the constitution recognized the fact that a person convicted and sentenced has a right to appeal against their conviction and sentence and ultimately found that the commission erred when it upheld an objection against Zuma based on this section.

This prompted the IEC to turn to the Constitutional Court for clarity on the section before elections.

IEC Deputy CEO Mawethu Mosery explains, “The outcome in terms of the order of the court leaves a number of constitutional questions and once there are constitutional questions, it’s the apex court, which is the constitutional court, that must give the clarity, the understanding that is desirable.”

The Council for the Advancement of the South African Constitution (CASAC) has been admitted as a friend of the court and seeks to assist the court in determining the matter by centering its submissions on the separation of powers principle and the nature of the president’s power to remit sentences.

CASAC Executive Director Lawson Naidoo says, “We believe that the separation of powers clearly would require that the sentence imposed by the court must be respected at all times. That the effect of an executive decision whether by a parole board or by the president in this case, for the purposes of reducing overcrowding in prison simply means that the term of the sentence is reduced by the executive decision but it has no impact on the initial sentence and particularly in the context of Section 47 of the Constitution. We believe that the Constitution rightly places that responsibility in terms of the length of service to exhibit and demonstrate its dismay with the kind of conduct that would demand a sentence of more than 12 months, that that should be a judicial function.”

The apex court will hear the matter on Friday, which will bring finality to the question of whether section 47 (1) (E) applies to the former President before any votes are cast.