Pierre de Vos, Constitutionally Speaking
19 March 2019
Last week South Africa’s Electoral Commission (also colloquially referred to as the IEC) announced that it will not prohibit the fringe group, Black First Land First (BLF), from contesting the upcoming election, despite the fact that its constitution makes clear that only “black” people are allowed to join the party. The Freedom Front Plus (VF+), a slightly larger fringe group who represents the interests of far-right “white” voters, is challenging the legality of this decision. Some might say this is a match made in heaven. But what are the chances of the FV+ winning this legal battle?
The BLF is a small but noisy group aligned to various participants in the capturing of the state, including the Gupta family and former President Jacob Zuma. The party has now transformed itself into a small political party contesting the national election, hoping to capture a profitable seat or two in the National Assembly. Section 4(1) of the BLF constitution says the following about membership of the organization:
Any black person who has reached the age of eighteen; accepts the politics, ideological perspective and Constitution of the BLF; joins a branch of the organization and is prepared to work actively in it as part of the branch collective; is committed to honoring [American spelling in original text] the organization’s resolutions and decisions; accepts the organization’s policy perspectives; commits herself/himself to being a disciplined member, and; is willing to pay the necessary membership fees may become a member of BLF.
The BLF defines “black” broadly to include “those that come from the African communities, the so-called Coloured communities and so-called Indian communities”. It is clear from its constitution that “white” voters are not permitted to join the party.
The registration of political parties is regulated by provisions of the Electoral Commission Act. To register with the IEC, a political party must submit a deed of foundation, a nominal registration fee, and the party’s constitution. To take part in the national election a party must further submit a deposit of R200 000.
Section 16(1)(b) of the Electoral Commission Act prohibits the chief electoral officer from registering a political party if itsproposed name or symbol resembles the name, or symbols of any other registered party “to such an extent that it may deceive or confuse voters”. Section 16(1)(c) further prohibits the chief electoral officer from registering a political party if:
a proposed name, abbreviated name, distinguishing mark or symbolmentioned in the application or the constitution of the partyor the deed of foundation… contains anything: (i) which portrays the propagation or incitement of violence or hatred or which causes serious offence to any section of the population on the grounds of race, gender, sex, ethnic origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture or language; or (ii) which indicatesthat persons will not be admitted to membership of the party or welcomed as supporters of the party on the grounds of their race, ethnic origin or colour.
This section appears to make a distinction between the “name, distinguishing mark or symbol” of a political party, on the one hand, and the policies and other rules contained in the party’s constitution, on the other. If the name, distinguishing mark or symbol of a party (as contained in its deed of foundation or constitution) portrays the propagation or incitement of hatred or violence based on race, gender, sexual orientation and other listed grounds, or indicates that membership is restricted to people based on race, ethnic origin or colour, the party may not be registered.
This means the IEC would have to refuse to register a political party called the “Whites Only Party (WOP)”, or “The Blacks Only Party (BOP)” or the “Hundred Percent Zulu Party (HUPZUP)”. It will also have to refuse to register a party whose symbol includes a picture of a person of one race, hitting or stabbing a person from another race.
However, the section does not require the IEC to reject the registration of the party if provisions in the party’s constitution incite or propagate hatred or violence on the basis of race, gender sexuality or other listed grounds, or if such provisions prohibit people of a particular race from becoming members of the party.
Because of the specific wording of section 16(1)(c) of the Electoral Commission Act quoted above, it would be difficult to convince a court that the IEC has a legal duty to refuse to register a party because that party in its constitution discriminates on the basis of race (for example, by prohibiting either “black” or “white” people from joining the party). Similarly, a court may well rule that the IEC has no duty to refuse registration of a political party, whose constitution contains provisions that incite violence against, or cause offence to, gay men or lesbians, or women or men, or “black” or “white” people.
But this is where things get weird, raising questions about whether the drafters of the Act made a deliberate choice or whether it accidentally included two provisions that seem to contradict each other. Section 17(1)(d) of the Electoral Commission Act permits (but does not require) the IEC to cancel the registration of a party if:
that party has changed its deed of foundation or constitution and the Commission is satisfied that change has resulted in that deed of foundation or constitution containing anything: (i) which portrays the propagation or incitement of violence or hatred or which causes serious offence to any section of the population on grounds of race, gender, sex, ethnic origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture or language; or (ii) which indicates that persons will not be admitted to membership of the party or welcomed as supporters of the party on the grounds of their race, ethnic origin or colour.
This section deals only with changes to the party’s deed of foundation or constitution. But unlike section 16 quoted above, it does not only apply to the name, distinguishing mark or symbol of the party, but to any amendment contained in the deed of foundation or constitution of that party.
This is odd, because if the text of the two provisions mean what they seem to mean, a party like the BLF would be allowed to register as a political party despite only allowing “black” members, but another party who, when it was initially registered, allowed everyone as members, then changed its constitution to prohibit “white” people from joining, could be deregistered by the IEC.
It would also mean that a party whose constitution contains provisions that incite hatred or violence against members of another race would have to be registered as a political party as long as this incitement is not reflected in the party’s name or symbols. But if the party only later amends its constitution to include provisions that incite hatred or violence against others on the basis of race, the IEC would be permitted to deregister that party. It does not seem to make sense. Perhaps this is something for the legislature to fix.
Apart from these provisions in the Electoral Commission Act, section 9(1) of the Electoral Code (contained in Schedule 2 of the Electoral Act) also regulates the behaviour of political parties during the election campaign and prohibits political parties from discriminating on a limited number of grounds. But the wording of this section may, again, not cover a situation where a party prohibits members of a certain race from becoming a member. The section states:
(1) No registered party or candidate may:
(a) use language or act in a way that may provoke: (i) violence during an election; or (ii) the intimidation of candidates, members of parties, representatives or supporters of parties or candidates, or voters;… or
(d) discriminate on the grounds of race, ethnicity, sex, gender, class or religion in connection with an election or political activity.
The section does not explicitly prohibit a political party from prohibiting members of a certain race, sex, religion or ethnicity from becoming a member. It does prohibit a party from discriminating against anyone on the ground of race “in connection with an election or political activity”.
This section is not a model of clarity, but it appears to regulate the behaviour of parties or candidates during the election. If a party holds a political rally and it refuses entry to that rally to members of a particular race, it would almost certainly act in breach of the Electoral Code.
But what if a party fails to include any “white” people, or any women, or any Muslims on its election list? Will this constitute discrimination on the basis of race, sex or religion in “connection with an election or political activity”? Unless one gives this phrase a very expansive meaning, the compilation of an election list, or provisions in a party constitution prohibiting members of a certain race from joining the party would not be covered by this provision in the Electoral code.
For all these reasons, it is not a forgone conclusion that the VF+ stokvel will win its case against the BLF. In fact, if I was a betting man and had a few Rand to spare, I might have been tempted to bet against them winning this case.