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SA Elections: what does the electoral code of conduct say about the abuse of state resources?
6 May 2014

All’s fair in love and war – and politics, it would seem. Or is it?

Recently, several allegations have been made against the African National Congress (ANC) for abusing state resources during its electoral campaign. Democratic Alliance (DA) leader Helen Zille has accused the ANC of using its position as governing party to boost its majority at the polls on 7 May. Media reports have revealed that the South African Social Security Agency (SASSA) distributed food parcels at a recent ANC rally, and there are allegations that various government departments have increased their spending on advertising their achievements, and using the colours of the ANC in their billboards.

There has also been the rather coincidental handing out of ANC T-shirts during government ministers’ walkabout. The Sunday Times recently reported that a Gauteng Provincial traffic police vehicle was being used to ferry and distribute ANC T-shirts at an event attended by President Jacob Zuma.

It also seems as though there has been an increase in government advertising explaining the ANC government’s ‘good story to tell’ – and even stretching as far as ubiquitous advertisements for the South African National Defence Force. At a recent Institute for Security Studies (ISS) seminar on money and politics, DA member of parliament (MP) Lance Greyling advocated a total ban on government advertising during election campaign periods to minimise opportunity for the governing party to use state resources in its voting campaigns. The DA has referred the abuse of state resources to the Public Protector for investigation, and has also instituted action in the Cape High Court, sitting as the Electoral Court, against abuses by SASSA.

The question remains whether what the ANC is doing falls under 'prohibited conduct'

Unfair campaigning is not a new issue; similar accusations had been levelled against the ANC in the run-up to the 2009 general election. At the time, the African Christian Democratic Party (ACDP) alleged that the ANC had contravened the electoral code of conduct by illegally removing posters of opposition parties. There were also media reports of ANC campaigners threatening the owners of Reconstruction and Development Programme (RDP) houses that they would lose their property if didn’t vote in support of the ruling party. However, the ANC was not the only political party that allegedly breached the electoral code of conduct in the 2009 campaigning period. The Freedom Front Plus unsuccessfully filed criminal charges against the DA for circulating SMSes that urged people not the vote for the party.

Prior to elections, parties sign the electoral code of conduct, which is provided for in Schedule 2 of the Electoral Act 73 of 1998 and which requires that they adhere to certain standards of behaviour, specifically during the campaigning period. The electoral code is intended to produce a political context that is conducive to free and fair elections, fostering acceptance of democratic political activity, encouraging free political campaigning and stimulating open debate on pertinent social, economic and political issues.

The code of conduct describes ‘prohibited conduct’ as statements that in any way incite violence, or result in the persecution of any candidates or voters. The code restrains political parties or candidates from disseminating spurious or vilifying allegations directed at representatives of political parties. It also places an embargo on individuals or groups in passing off symbols, colours or acronyms of other registered political parties as their own. The aim is to lower the likelihood of electoral violence that would ultimately undermine stable elections and democracy.

One could argue that handing out cash is the crudest form of campaigning

The code further stipulates that no person or political party may offer any inducement or reward that could influence political party identification or allegiance; nor infringe on the freedom of association of individuals in attending and participating in public meetings or political events. It further outlaws the use or display of armaments during political meetings, demonstrations, rallies or public political events, and safeguards people’s right of access to other people for the purposes of voter education, soliciting support for any political party or candidate, accumulating funds and so on.

The code also disallows any person or party from interfering with the electoral campaign and marketing strategies of other parties, by prohibiting the vandalism or removal of banners, posters, advertisements or any other materials used by political parties or candidates. Ultimately, the code of conduct forbids any political party or person from misusing a position of power or influence to alter the regulation or end result of an election.

Any political party or person found to be in breach of the electoral code of conduct might be subjected to penalties and fines determined by the Electoral Court. Depending on the severity of the violation, the Electoral Court reserves the right to issue a formal warning or fine to any value below R200 000, or to bar any political party or individual from making use of public media to promote its political objectives, and from distributing electoral adverts and pamphlets, among others.

The purpose of the electoral code of conduct is to provide clear guidance for acceptable behaviour of all the key actors participating in the electoral processes. This is seen as instrumental in yielding credible, free and fair elections, and ensuring a public commitment to fair play from all parties.

So, the question remains whether what the ANC is doing falls under the definition of ‘prohibited conduct’ so as to have a direct bearing on the election result, or whether it is simply the combination of a crass form of vote buying and using the benefits of incumbency – as any political party would do.

The DA approached the Cape High Court for relief against the Social Development ministry, but the matter was dismissed. It will now seek to appeal Judge Desai’s ruling.

Governing parties typically use their dominant position to garner votes. Yet, one could very well argue that handing out cash is the crudest form of such campaigning. However, often ‘on the stump’ these things happen so quickly, and given the pace of campaigns in South Africa, are soon forgotten.

The KwaZulu-Natal Member of the Executive Council, Meshack Radebe, displayed a more insidious form of abuse when he said that social grants are only for ‘ANC supporters’. This is a more dangerous form of rhetoric; and ultimately more damaging. Had the matter been taken to the Electoral Court it would not have made a difference, since the words can’t be withdrawn. The people who heard these words hopefully also heard that Radebe was wrong, and that it is their constitutional right to receive a grant – no matter whom they voted for.

So, in some ways the law can assist us – in other ways it is merely of retrospective assistance. Because what ultimately creates free and fair elections is a deeply entrenched democratic culture, which will ensure that citizens are able to discern when public money is abused on the campaign trail, and when untruths that undermine our rights are being told.

Judith February, Senior Researcher, Governance Crime and Justice Division, ISS Pretoria

This article was originally published by Eye Witness News and the Cape Argus

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