The Constitutional Court recently heard argument from a number of parties in a vigorously contested constitutional case. The Electoral Commission is asking the Constitutional Court to allow a departure from the constitutionally set time-limit for the country’s local government elections that are currently scheduled for 27 October 2021.
The case has obvious political implications, but Freedom Under Law is concerned only with a constitutionally crucial objection to any attempt to circumvent the time-limits laid down by the Constitution for our elections. Certainty that elected representatives will be called to account at fixed intervals is an essential component of representative democracy. Tampering with the constitutionally fixed intervals between elections, for whatever reason, erodes their legitimacy – it is to disrupt the heartbeat of our democracy.
It is therefore no surprise that the Constitution makes no allowance for bending the rules regarding electoral timelines. Nobody, not even the Constitutional Court, has the power to depart or allow departures from the clear limits set by the Constitution. Either the Constitution must be amended to grant the Court such power – or the Constitution must be complied with.
Even if the Court could bend the Constitution, as a matter of constitutional principle it should not. Hundreds of elections have been held around the world during the pandemic. Just this past weekend presidential elections were successfully held in Zambia.
But ultimately the question is not whether it would be appropriate to postpone the elections, but whether the Constitutional Court has the power to do so.
Freedom Under Law will be arguing that everyone – the electorate, the political parties, the Electoral Commission and the Constitutional Court – must simply obey our Constitution.