Democracy shackled
In any democratic setup, elections are not a game. They are a war, where combatants, being all the people, agree to put weapons aside and resolve their differences through the ballot box. Elections can't even be characterised as "war games" because war games, like all other games, subscribe to RULES. The only rule, if one can call it that, that the elections observe is that the weapons shall stay down only for as long as the ballot box process is demonstrably free, fair, and most importantly, credible TO ALL COMBATANTS.
All other rules cannot, and should not matter in an election, because the whole purpose of an election is to choose a rule maker. A rule maker can only be chosen where there is a vacancy. That means that elections are a discontinuity. There is a point in the elections where it should be understood, using common sense, that there is no Government, no President, no courts, and therefore no rules except common sense and the need to avoid a resort to arms. The fact that during an election some body or some force calls itself the Government or the President, is no more than cosmetic formality. The very validity of the body or entity that calls itself the Government or the President expires on the discontinuity that the elections represent. The courts being creatures of the statute put in place by the previous "Government" should restrict their statutory activity SOLELY to the determination of the freedom, fairness, CREDIBILITY, or lack thereof, of the ballot exercise. To do this the courts should not even use the Constitution, because the Constitution itself is effectively suspended by the election. Instead, the courts should use THE LAW OF COMMON SENSE.
You see, there is no greater "stakeholder" in an election than the voter. All the voter really cares about is that his/her vote is added to the tally, the tally counted, and on that basis a government is formed.
Mokgweetsi Masisi heads a uniquely illegitimate government; uniquely illegitimate because when challenged to prove its legitimacy in the courts of law that it created, it resorted to its assumed incumbency to block such challenges from even reaching those courts.
I am not a lawyer, therefore what I write may feel nonsensical to those schooled in law. Perhaps those schooled in law would help explain to us how election results, and petitions arising therefrom can almost literally be swept under the carpet together with the assumed freedom, fairness and credibility, as seems to have happened in our 2019 general elections.
I have just read Lediretse Molake's piece in last Sunday's "Sunday Standard". While I profess incapacity to clearly understand what the learned lawyer's analysis lays bare, I am inclined to think that his line of reasoning is not vastly different from what one of the South African lawyers for the election petitioners was saying before the Court of Appeal (CoA).
My own reading of the widely circulated extracts from various statutes suggests that as per Section 106 of the Constitution, for a decision of the High Court NOT to be appealable, it is necessary and sufficient that such decision satisfies two conditions:
If the High Court's decision with regard to points in limine raised by the BDP and IEC did not involve INTERPRETATION OF THE CONSTITUTION, even if such decision was under Section 96(1) of the Constitution, why then did the Court of Appeal rule that it had no jurisdiction to hear the case? Even if we were to assume that the Court of Appeal ruled that the decision of the High Court was not appealable, as opposed to it (CoA) having no jurisdiction, how was the decision of the High Court deemed to have satisfied BOTH conditions 1 and 2 above?
All other rules cannot, and should not matter in an election, because the whole purpose of an election is to choose a rule maker. A rule maker can only be chosen where there is a vacancy. That means that elections are a discontinuity. There is a point in the elections where it should be understood, using common sense, that there is no Government, no President, no courts, and therefore no rules except common sense and the need to avoid a resort to arms. The fact that during an election some body or some force calls itself the Government or the President, is no more than cosmetic formality. The very validity of the body or entity that calls itself the Government or the President expires on the discontinuity that the elections represent. The courts being creatures of the statute put in place by the previous "Government" should restrict their statutory activity SOLELY to the determination of the freedom, fairness, CREDIBILITY, or lack thereof, of the ballot exercise. To do this the courts should not even use the Constitution, because the Constitution itself is effectively suspended by the election. Instead, the courts should use THE LAW OF COMMON SENSE.
You see, there is no greater "stakeholder" in an election than the voter. All the voter really cares about is that his/her vote is added to the tally, the tally counted, and on that basis a government is formed.
Mokgweetsi Masisi heads a uniquely illegitimate government; uniquely illegitimate because when challenged to prove its legitimacy in the courts of law that it created, it resorted to its assumed incumbency to block such challenges from even reaching those courts.
I am not a lawyer, therefore what I write may feel nonsensical to those schooled in law. Perhaps those schooled in law would help explain to us how election results, and petitions arising therefrom can almost literally be swept under the carpet together with the assumed freedom, fairness and credibility, as seems to have happened in our 2019 general elections.
I have just read Lediretse Molake's piece in last Sunday's "Sunday Standard". While I profess incapacity to clearly understand what the learned lawyer's analysis lays bare, I am inclined to think that his line of reasoning is not vastly different from what one of the South African lawyers for the election petitioners was saying before the Court of Appeal (CoA).
My own reading of the widely circulated extracts from various statutes suggests that as per Section 106 of the Constitution, for a decision of the High Court NOT to be appealable, it is necessary and sufficient that such decision satisfies two conditions:
- The decision MUST have been made under Section 69(1) of the Constitution.
- The decision MUST involve Interpretation of the Constitution.
If the High Court's decision with regard to points in limine raised by the BDP and IEC did not involve INTERPRETATION OF THE CONSTITUTION, even if such decision was under Section 96(1) of the Constitution, why then did the Court of Appeal rule that it had no jurisdiction to hear the case? Even if we were to assume that the Court of Appeal ruled that the decision of the High Court was not appealable, as opposed to it (CoA) having no jurisdiction, how was the decision of the High Court deemed to have satisfied BOTH conditions 1 and 2 above?
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