IMAGE CREDIT: Helen Riding, Wikimedia Commons
Last week, Ms Pansy Tlakula handed in her resignation to President Jacob Zuma as Chairperson of the Independent Electoral Commission (IEC).
I will not go about explaining the series of events that ultimately led to this decision. I will focus, instead, on the legal aspects of the appointment process of a new chairperson going forward. This requires that we begin with an understanding of the appointment procedures for members of the IEC, as these processes are necessarily a precursor to the appointment of a chairperson.
The IEC is a body established in terms of section 3(1) of the Electoral Commission Act 51 of 1996 as required by Chapter 9 of the Constitution. In terms of section 6 of the Act the Commission (IEC) has to consist of five members, one of whom is a judge, appointed by the President.
The appointment processes for members of the IEC is as follows. A Panel chaired by the Chief Justice of South Africa — which includes a representative from the Human Rights Commission, a representative from the Commission on Gender Equality and the Public Protector as Panel members — submits a list of no fewer than eight recommended candidates to a Committee of the National Assembly. The Committee in question is proportionally composed of members of all parties represented in the National Assembly.
The Committee is required to nominate a candidate from the recommended list formulated by the Panel. The candidate also needs to be recommended by the National Assembly through a majority resolution. As I understand the statute, the latter recommendation by the National Assembly is not subject to it choosing a candidate from the recommendation list formulated by the Panel. Following these processes, the President would appoint the nominated and recommended candidate as a member of the IEC.
So far I have omitted to describe the so called “appointment criteria” relevant to the aforementioned processes. No one can serve as member of the IEC unless they are a South African citizen. Moreover, the candidate member must not have a “high party political profile” at the stage of appointment. Unfortunately, the term “high party political profile” is undefined by the Act. In addition to these criteria, the Panel which recommends candidates to the Committee, has to do so “with due regard to a person’s suitability, qualifications and experience” and in accordance with the “principles of transparency and openness”.
As mentioned above, these processes serve as a precursor to the appointment of the chairperson because in terms of section 8, the President designates a chairperson and vice-chairperson from among the members of the IEC. Interestingly, in the absence of both the chairperson and vice-chairperson, the remaining members shall elect an acting chairperson from their number. I understand all the above to mean that during the current period in which the IEC has no chairperson, the vice-chairperson would become the acting chairperson by the operation of law.
This has just been an explanatory note for present purposes, I will endeavor to analyse the statute in more detail at a later stage.
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