Former President Jacob Zuma.Photo: Fani Mahunzi/Getty Images
Former President Jacob Zuma has successfully appealed the SA Electoral Commission's decision to bar him from standing for parliament in next month's election, saying all the grounds cited by the Umkhonto Wisiswe (MK) Party were false. , the commission argues in a document submitted to the Constitutional Court.
“On all the arguments that have been made, the Electoral Tribunal is legally wrong,” the IEC said of the court's decision to overturn the ruling that Zuma was ineligible to run.
Three days after the court ruled that Mr Zuma was not disqualified under Article 47 of the Constitution despite his 15-month prison sentence in 2021, the government applied for a stay of the emergency appeal.
The Electoral Tribunal's order came as a surprise as his record appeared to place him squarely within the purview of section 47(1)(e).
The law prohibits anyone sentenced to more than 12 months' imprisonment without the option of a fine from serving as a member of parliament for five years.
The MK Party argued that the IEC exceeded its powers because only Parliament could enforce Article 47(1)(e).
This not only goes against the spirit of the law but also shows a flawed logic, the commission said in its founding affidavit.
“The wording, structure and purpose of article 47(1)(e) are all contrary to its conclusion,” the report said, adding that having to make eligibility decisions before voting is It added that this was clear from the broader context of the law.
Leaving it up to Congress implies that it will happen after the election.
“Several provisions of the Electoral Act require the Electoral Commission to consider whether a candidate is eligible under section 47(1)(e) before, rather than after, the election. .”
The very purpose of Article 47 is to determine whether a candidate is eligible to stand for election, and it is nonsense to allow a candidate to stand if he or she cannot win a seat in Parliament.
“If a candidate is not qualified to hold public office, he or she is not qualified to run for office.”
Zuma and the party sought to argue that there is a difference between eligibility to stand as a candidate under section 30(1)(a) of the Electoral Act and eligibility to be a member of parliament under section 47(1) (e) Constitution.
“They never explained the difference,” the IEC said.
There is also no legal provision for the National Assembly to determine the eligibility of the elected candidate after the election. The first meeting after the vote is for the purpose of swearing in the newly elected members of Congress.
“The Constitution does not leave any room for the Diet to decide whether the winning candidate is disqualified after an election.''
Therefore, the argument that implementation of Article 47(1)(e) is left to Parliament rather than the IEC is inconsistent with the structure of the Constitution.
However, there was a further logical flaw in the MK Party's argument.
It will be up to parliamentarians to decide whether someone is eligible to become a member of parliament.
“This reasoning is circular, since membership is required to determine membership status,” the IEC said.
The MK party insisted that Mr Zuma had not been convicted of any crime. Here, when Mr Zuma applied to set aside his contempt of court conviction, we revived Mr Zuma's claim that his rights were violated because he was convicted of contempt of court with the benefit of a criminal trial. I tried to make it happen.
The IEC said this argument has long been enshrined in law, as the Supreme Court has accepted and “explained many times” that contempt is an amalgamation of criminal and civil procedures. But apart from that, Article 47 only states that the person needs to be convicted for a long period of time, but does not say that the person needs to be convicted after a criminal trial.
The MK party made two original arguments regarding Zuma's ruling.
The IEC argued that both were wrong.
The first is that the judgment was not a true judgment as he had no right to appeal and section 47(1)(e) only applies to judgments that are appealable. .
The IEC countered that “the appealability of a judgment does not affect whether there is a judgment.''
Second, Zuma was not sentenced to 15 months because his sentence was commuted by President Cyril Ramaphosa in August last year.
However, this argument confuses the Constitutional Court's ruling with the length of time Zuma served. The latter is “not significant,” the IEC said.
“While release will change the length of time Mr Zuma has served, it will not change the sentence imposed.”
In July 2021, the former president was sentenced to prison by the Constitutional Court for contempt of court after failing to comply with a court order to testify to the Commission of Inquiry into State Capture.
He completed his sentence on July 8, 2021, but was released on medical parole a few weeks later.
He returned to prison on August 11 last year after the Court of Appeal ruled his early release was illegal. However, his sentence, along with thousands of other prisoners, had been commuted by the president the night before, so reporting to Escort Correctional Facility was an administrative task.
The IEC warned that accepting the MK party's claim that the sentence had been reduced was not only legally wrong, but also undermined the separation of powers.
It does so by seeking to give the president the power to overwrite decisions handed down by courts.
“The President cannot change the facts of the conviction and sentence,” the IEC asserts.
“What is important for article 47(1)(e) is the fact of conviction and sentence, and that fact cannot be altered by executive law. Nor did he claim that no punishment had been imposed. Nor was this a natural effect of remission.”
“A contrary interpretation, which risks being accepted by the Electoral Court, would give the President (and the ruling party leader) the power to override a judicial decision not to apply Article 47(1)(e). It will be granted through pardons. ”
The MK party further claimed that Mr Zuma had not been convicted of any crime.
The IEC said this argument was refuted by the language of the law itself.
In its judgment, the Supreme Court found Zuma “guilty of contempt of court” before sentencing him to prison. And the Correctional Services Act defines a “sentenced offender'' as “a person who has been convicted of a crime.''
The IEC applied for a stay of appeal, ignoring the reasons for the Electoral Court's decision, which have not yet been made public. Only orders were given.
The IEC appealed for direct access to the Supreme Court, saying the case raises important questions and there are new questions that the Constitutional Court needs to interpret.
The commission said IEC member Janet Love's response to a question at the international commission referred to Zuma's proposal, saying that “an institution as important as the commission could be biased or favoring one side or the other.” “We should not be asked to hold elections under the cloud that this is the case.” Media briefings raised reasonable concerns about bias.
If the appeal is not finalized by Election Day, May 29, “the Electoral Court's erroneous findings resulted in a disputed election result because ineligible persons were allowed to violate the election.” There was a risk that the Constitution,” the IEC said.
The question of Mr Zuma's eligibility to run will “impact the decisions millions of voters will be asked to make at the polling stations”.
The Committee therefore emphasized that this issue goes far beyond the interests of litigants alone.
The court said it should have the final say on the interpretation and outcome of the Constitutional Court's sentence against Zuma three years ago, and on the interpretation and application of the Article 47 prohibition.
The IEC asked the court on Tuesday to clarify its reasons, but the court said it had not yet responded or indicated when it would do so. With the election looming, I couldn't wait to move forward with my request for a stay of appeal.
“The commission is not sure when the Electoral Tribunal will explain its reasons, but we cannot wait.”
The MK party indicated on Friday that it would demand Chief Justice Raymond Zondo's resignation if the Constitutional Court hears the appeal, saying the contempt conviction arose from an application by a committee he chairs.
The IEC received 22 challenges to Mr Zuma's eligibility to stand for election under Article 47(1)(e) of the Constitution. We supported two, but rejected the rest because they were submitted too late or were not submitted to the MK party.