[Opinion piece by MVC Researcher Farai Savanhu]

The IEC Commissioner shortlist is out boasting 26 candidates to fill the three vacancies. The public has until 11 June to make the comments on the candidates. In the meantime, we’ll take a look at how this process unfolded in 2015, the context then was eerily similar to the current one, it was the year before a highly contested election.

In 2014, Pansy Tlakula resigned as Chairperson of the Independent Electoral Commission (IEC) amidst a lease agreement scandal. In 2015, the appointment process to replace her began. It was paramount that this process took place as soon as possible as the 2016 Local Government Elections were looming and the IEC needed to be at high capacity. As prescribed by legislation, a panel led by the Chief Justice interviewed shortlisted candidates and recommended a list of no less than eight names to the Portfolio Committee of Home Affairs in Parliament.As part of this process, the Chief Justice recommended that the Committee nominate a Commissioner who can hit the ground running. After intense deliberations, it was clear that there were two front-runners: Mr Glen Mashinini and Ms Janet Love.

Getting to Know Glen Mashinini and Janet Love
The IEC was formally established in 1996. Mashinini served as the Deputy Chief Electoral Officer from 1998 to 2000. In this role he contributed to the establishment of the IEC by conceptualising the design of key systems in the institution. Thereafter, Mashinini started an electoral advisory and management consultancy that provided services across Africa. Through his consultancy work, Mashinini was appointed as the Deputy Chairperson of the Presidential Review Committee on State Owned Entities in the Presidency with the main task of evaluating these entities and releasing a report of the findings. As a result, Mashinini was appointed as a Special Projects Advisor to former President Jacob Zuma. The purpose of this appointment was to assist the President to implement the report.

Ms Janet Love was an anti-apartheid activist. She was part of the Trade Union Movement and the African National Congress (ANC). She spent 10 years in exile. Upon return to South Africa, Love was involved in the Convention for a Democratic South Africa (CODESA) negotiations that culminated in the end to minority rule in South Africa. In 1994, she became a member of Parliament (MP) for the ANC and was part of the team that drafted the final Constitution of the Republic. Love left Parliament to serve as a Special Advisor to the Minister of Water Affairs and Forestry. She then worked in the South African Reserve Bank for five years and in 2006 took up the position of Legal Resource Centre (LRC) National Director. Under her leadership, the LRC had tirelessly advocated for the rights of the poor and the marginalised. In 2009, Love was appointed as a Commissioner to the South African Human Rights Commission (SAHRC).

 

Round one: Parliament Committee Deliberations
The Portfolio Committee on Home Affairs tasked with nominating a Commissioner that year consisted of five ANC members, two Democratic Alliance (DA) members, one Economic Freedom Fighters (EFF) member and one Inkatha Freedom Plus (IFP) member. The ANC’s choice was Mashinini for his extensive experience in election management. They argued that Mashinini would be able to hit the ground running just as the Chief Justice had recommended. However, the opposition parties favoured Love because they were concerned that Mashinini had a close link to the President. In addition, they contended that Tlakula should be replaced by another female for gender representation. Due to the ANC’s majority in the Committee, the opposition parties were outvoted and the Committee put forward Mashinini’s name for the position.

Round two: National Assembly Deliberations
Next, the National Assembly whose role it is to approve or reject a nomination, had their deliberations. When the National Assembly approves a nomination recommended by the Committee, that individual is then appointed as a Commissioner by the President.

An overwhelming ANC majority in the National Assembly backed Mashinini while opposition parties backed Love. The ANC clarified that Mashinini was linked to the Office of the President and not President Jacob Zuma directly. They argued that no one in South Africa is apolitical and that Mashinini had an impeccable track record. However, opposition parties maintained their stance. They contended that after the Tlakula scandal it was critical to protect the IEC’s credibility. They highlighted that the other candidates were just as capable and were not tainted by a close link to the President. The importance of appointing someone that was above suspicion was reiterated. A motion was raised to refer this nomination back to the Committee for reconsideration however, political parties voted in response to the motion and the opposition parties lost. A total of 223 members voted in favour of Mashinini and 127 voted against. There were two abstentions. The National Assembly thus recommended Mashinini as a Commissioner of the IEC. He was formally appointed as an IEC Commissioner in April 2015 and later as Chairperson of the IEC in October 2015.

Our Reflections
Mashinini had a brilliant CV and there was merit to him being appointed to hit the ground running ahead of the 2016 Local Government Elections. However, the need to quickly fill a position should not be done to the detriment of the image of the IEC. It is essential that the IEC enjoys confidence from the public and from all political parties. This appointment could have interfered with that as it will now always be judged with a hint of suspicion. In defending his appointment Mashinini stated that legislation dictates that a Commissioner should not have a prominent political profile and that he did not have one. He explained that his two assignments within the Office of the Presidency were not political and that he accepted the roles in order to serve his country. Mashinini contended that the IEC systems were set up in a manner that the appointment of one Commissioner cannot disrupt the entire administration. Some would argue that this is supported by the fact that it was the IEC staff that clamped down on Tlakula in regards to the lease agreement scandal which led to her resignation.

As we embark on a new process to fill three Commissioner vacancies on the IEC it is important that we reflect on this former process and gather some learnings from it. The first being the issue of a Commissioner not having a known political affiliation or holding a high party-political profile. Mashinini was a Special Projects Advisor to the President and had campaigned for the ANC during his time as a student in Australia. Love, on the other hand, was once part of the ANC and served as an ANC MP from 1994 – 1999. Her appointment as Commissioner for the SAHRC came under fire from Helen Zille for this very reason although she received support from colleagues across the board. The ANC argued that no one in South Africa is apolitical. It is true that we live in a highly politicised state but it may be prudent to consider what exactly we mean by ‘high political profile’ or ‘political affiliation’? Either would cast a cloud on the legitimacy of the appointment if it affected the confidence of the public in the appointed person’s ability to perform their duties impartially.

The second issue is to do with gender representation. It is a matter of concern that after Tlakula’s resignation there was only one female Commissioner, Ms Raenette Taljaard. This should have been taken into consideration during the appointment process. Taljaard resigned as an IEC Commissioner in early 2015. This means that up until Love’s appointment in 2016 the IEC Commissioners were all male. Currently, Love is the only female Commissioner. It is our hope that going forward more female Commissioners would be appointed in order to avoid having a male dominated leadership of the IEC.

Lastly, we think it was possible for political parties to find common ground on a single candidate for this position. We saw this a year later when the process to fill the vacancy created by Taljaard’s resignation began. The Committee which consisted of the ANC, the EFF and the DA nominated Love which was followed by the National Assembly unanimously recommending Love for the appointment of Commissioner. Perhaps for this reason, the appointment process should be reviewed to avoid the majority party in Parliament from being able to sway the vote towards their favoured candidate? If Parliament was able to vote unanimously in the case of Love in 2016, then it is possible for a nomination to be agreed upon by consensus.

Currently…
A new appointment process for Commissioners is underway where three vacancies are up for grabs. The names of 26 candidates have been released and can be viewed here. http://www.myvotecounts.org.za/2018/05/26-shortlisted-candidates-for-iec-commissioner-posts/

It is vital that we monitor this process to ensure that the most capable and impartial individuals are appointed as Commissioners.

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