South Africa: Electoral Commission Act

Glenda Fick, October 1998

See also Electoral Commission.

Establishment of the Commission

The Electoral Commission Act 51 of 1996 (the Act) provides for the establishment of an Electoral Commission composed of five members. Section 6 of the Act makes South African citizenship a requirement for appointment to the Commission.

Appointment of commissioners

The Act makes provision for the appointment of the commissioners by the President upon recommendation of a committee of the National Assembly. Recommendations are made from a list of candidates prepared by a panel of representatives from the other institutions supporting democracy, namely the Human Rights Commission, the Constitutional Court, the Commission on Gender Equality and the Public Protector (section 6(3)). This section of the Act purports to give effect to the values of accountability, openness and responsiveness contained in the Constitution (section 1(d)).

Powers of the Commission

The 1996 Act applies in respect of any election for the national, provincial and local legislative bodies (section 2).

The powers of the Electoral Commission are to be found in section 5 of the Act. Section 5(1) lists the management of any election as the first function of the Electoral Commission.

A reading of the relevant sections in each Act suggests a less 'hands-on' role on the part of the new Commission compared to that of its predecessor, the Independent Electoral Commission established in terms of the Independent Electoral Commission Act 150 of 1993 (the 1993 Act). For example, section 13(2)(c) of the 1993 Act provided that the IEC was responsible for the education of voters concerning 'democratic principles and values' and 'the electoral process and mechanisms'. The language of the corresponding section of the 1996 Act (section 5(k)) requires the Electoral Commission to 'promote voter education'.

The term 'promote' occurs several times in section 5, which sets out the functions of the Commission. 'Promote' may be interpreted as acting in furtherance of the Commission's functions. The term suggests that the Commission, while remaining central to the process of performing its functions, would not necessarily have to perform all these functions itself. Clearly, the Commission would have to further or advance the processes attached to its functions. However, it could rely on other agencies or institutions to do so.

This interpretation is supported by section 5(2)(b), which requires the Electoral Commission to establish and maintain the necessary facilities for collecting and disseminating information regarding electoral matters. Furthermore, section 5(2)(c) provides that the Electoral Commission shall 'co-operate with educational or other bodies or institutions with a view to the provision of instruction ... in electoral and related matters'. The spirit of the 1996 Act suggests that the role of the Commission in carrying out its functions would be facilitative and supportive.

References

CONSTITUTION OF THE REPUBLIC OF SA 1996, [www]http://www.gov.za/documents/constitution/Constitution-Republic-South-Africa-1996-1 [opens new window, incorporates all amendments until 13th Ammendment (2007)] Act No. 108 of 1996; 14-16 Amendments available at http://www.gov.za/documents/constitution-amendments [opens new window] (accessed 16 Jul 2016); approved by Constitutional Court December 4, 1996; took effect February 4, 1997; amended 1996, 1997, 1998, 1999, 2001, 2002, 2003 (accessed 26 Feb 2010).

ELECTORAL COMMISSION ACT 51 1996, amended 2003, 2004, [www] http://www.elections.org.za/content/WorkArea/DownloadAsset.aspx?id=987 [opens new window] (accessed 26 Feb 2010).

INDEPENDENT ELECTORAL COMMISSION ACT 150 1993.