Mpofu: IEC has no power to rule on Zuma’s exclusion

Counsel for former President Jacob Zuma’s uMkhonto weSizwe (MK) party Dali Mpofu has argued the Electoral Commission of SA (IEC) has no right to say who could be elected to the National Assembly.

The MK party’s bid to overturn an IEC decision to bar Zuma from being one of the party’s candidates for parliament after the May 29 polls was heard by the Electoral Court, sitting at Johannesburg High Court, on Monday.

The party turned to the court in a last-ditch effort to have Zuma on the ballot and appeal the IEC’s decision last week to uphold an objection to the former president’s candidacy.

During his arguments, Mpofu said he would deal with the issues of bias, conviction, and the sentence of Zuma.

Peoples rights

Mpofu said the matter is essentially about the denial of a person’s right to participate in politics.

“In South Africa, or any other country, we should be extremely cautious before we can deny the political rights of anybody. The mere reason that we have a Constitution, and the reason why we are here today, is because people were denied the right to vote, the right to participate in politics and many other rights.”

Mpofu argued South Africa cannot afford to disenfranchise, whether it is former president Jacob Zuma or the uMkhonto weSizwe party “at a whim.”

“At face value, we are dealing with the right to vote for those who support this party and former president Jacob Zuma…We find disturbingly that the attitude of the electoral commission in this matter is exactly the opposite. The attitude has been: ‘Let’s see where we can catch him … Let’s ensure he doesn’t come out alive.”

“That cannot be the attitude of a South African institution, let alone an independent institution whose job it is to ensure that our Section 19 rights (every citizen is free to make political choices) are realised,” Mpofu argued.

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IEC has no authority

Mpofu said the IEC does not have the authority to implement Section 47 of the constitution which sets out the eligibility criteria and qualifications for the National Assembly (NA) and provincial legislatures respectively.

“The point we are making now is simply this: The IEC does not have, or must tell this court where it gets the authority to implement Section 47. The answer is, nowhere. It does not work that way… The only power of the IEC is found in Section 190 of the Constitution. It cannot wake up and do whatever it wants.”

However, Justice Dumisani Zondi reminded Mpofu that members of the National Assembly are sourced from the IEC’s candidate nomination list.

“There are about 15 000 people on the candidate list, those 15 000 are not members of the National Assembly. They are nothing. That process kicks in once those members are elected. You cannot then have the IEC exceeding its powers,” Mpofu argued.

IEC chairperson Mosotho Moepya said one of the grounds for Zuma’s disqualification was that the constitution states no person who was convicted and sentenced to more than 12 months’ imprisonment without the option of a fine can be elected to parliament, unless a five year period has lapsed after the conclusion of the sentence.

Zuma was sentenced to a 15-month prison term in 2021 after being found guilty of contempt of court.

ALSO READ: MK party appeals IEC decision to bar Zuma from contesting elections