ADR Case Study: South Africa
As a pioneer of ADR in elections, the Election Commission (IEC) in South Africa has used various ADR mechanisms over different election cycles. These have evolved with the socio-political context and have been helpful in preventing and resolving disputes. South Africa’s experience shows the importance of clearly defined ADR structures that are representative of local electoral stakeholders and enjoy their trust and confidence, as well as the importance of good training for those carrying out ADR work. One weakness in the South African experience is the failure to collect data on the ADR work that could be published to increase transparency and public trust.
In 1999, the IEC created Conflict Management Committees (CMCs) and mediation panels in political hotspots with the support of the Electoral Institute of South Africa (EISA).94 Special monitors were selected at the local level and provided with mediation training. The CMCs were headed by the provincial election officer and were made up of political party liaison representatives, local NGOs, security forces, and members of the mediation panels. Due to their success, the following year, the IEC expanded these structures to all South African provinces. The CMCs and mediation panels reportedly deterred conflict and violence, and the number of disputes before the IEC decreased over the years (although general progress in institutionalizing democratic practices also contributed to the decrease).95 The IEC has broad statutory power to attempt mediation to resolve any objection or appeal that the commission or its officers are required to decide on under the code (Electoral Act of 1998 Art 103), extended in 2003 to include complaints about infringements of the Code of Conduct.96 Over time, the nature of the complaints has shifted from election violence and intimidation to procedural issues. In the 2004 elections, 253 disputes were brought to the IEC.97 If the outcome of mediation is not satisfactory to any of the parties, they may take their case to the Electoral Court for a review or application for leave to appeal.98
Over the years, the IEC has modified its conflict management structures. In each province, the IEC now has a panel of conflict management experts who are deployed to intervene in conflicts as they arise.99 The provincial panels are assisted in their work by community panelists at the local level, so they can deal with local conflicts at the source.100 The panelists are managed by a provincial conflict management coordinator based at the provincial electoral office.101 They are trained to identify and mediate electoral and Code of Conduct disputes. Panelists are approved by the local party liaison committees and enjoy the respect and trust of political parties and the community. The panelists and coordinators work together to ensure that threats and risks of conflict are mitigated, with the panelists working directly to prevent violence. Despite general apprehension that the 2014 elections risked devolving into widespread violence, there was no large-scale violence around those elections or the 2019 elections, which was attributed to the panelists and their “…success [in mitigating these conflicts] by simply listening to people.”102
Electoral violence and disputes with criminal elements are dealt with by the criminal justice system. If a conflict panelist is dispatched to a situation where there is a grave or criminal violation of the Electoral Code of Conduct, the panelist will advise on a referral of the violation and how to access the criminal or Electoral Court. Panelists can also bring a matter to the attention of the IEC. The legal department of the IEC will then review the issue and refer it to the court if it is sufficiently serious.
Some changes were made to the deployment of conflict panelists in the November 2021 elections. Panelists were deployed full-time, in contrast to their previous deployment on an as-needed basis. Additionally, coordinators were integrated into Joint Operation Centers (JOCs), which are bodies composed of emergency personnel and members of the police and defense forces. These centers were instructed to provide the necessary support to the IEC during emergency situations during the elections.103 Working with the local party liaison committees, panelists can flag issues that are then fed into the JOC. These are then reported to the provincial JOCs and forwarded to the national JOC, allowing for all security infrastructures to be aware of the risks of electoral conflict. In terms of reporting, conflict panelists are not required to submit reports in written form,104 leading to much of the panelists’ work occurring without being recorded in any significant way.105 During the 2021 elections, the IEC launched an electoral justice online application portal to inform people of the available dispute resolution processes and make it easier to report Code of Conduct infringements. However, IFES was not able to find information on the number or type of disputes where the IEC or conflict panels used conciliation or mediation in the last elections. Some interviewees considered that the IEC should move toward digital collection and management of data as part of an early warning system to detect potential conflicts. The nature of conflict has changed in South Africa since the 1990s, with many pointing to the unrest in July 2021 as a measure of this change. Collection and analysis of local data could inform IEC decisions in identifying threats and in mitigating and handling conflict.106 This could include decisions to deploy panelists and other relevant structures to affected communities. Data collection about the panels’ work could be made public to increase transparency and public trust.
Despite their successes, the IEC budget and investments in the panels have decreased over the years. Some commentators recommend that the IEC ensure the panelists have the structure to be retained long-term and facilitate conversations that build local trust, foster dialogue, and allow communities to take part in critical decision-making processes, but this is against the backdrop of the IEC’s dwindling budget.
South Africa is also an example of a country where political party liaison committees (PLCs) have worked well in averting or resolving electoral conflicts.107 They were introduced in 1999 and are required by law to be established by the IEC at the national, provincial, and municipal levels. They act as a forum for consultation and dialogue between the IEC and the parties, and this has been particularly successful at the national-level PLC. While the PLCs were not intended to be an ADR mechanism,108 in practice, they have found ad hoc resolutions to operational problems as they arise, been consulted on law reform, and have helped complainants by educating them on options for referral to appropriate bodies.109 PLC members also participate in the conflict management structures described above. In the 2019 elections, the IEC used the national PLC to convene Commissioners and parties and agree on how to deal with a suspected multiple voting issue uncovered on Election Day. The IEC established a sample audit in conjunction with the Council of Scientific and Industrial Research—an organization agreed upon by most of the party representatives. Ultimately, the audit found no widespread multiple voting. This was a good example of dialogue between the IEC and the parties where they had an opportunity to develop a solution and agree on a way forward collaboratively.
94 Orozco-Henríquez, J. (2010). Electoral justice: The International IDEA handbook. International Institute for Democracy and Electoral Assistance. https://www.idea.int/sites/default/files/publications/electoral-justice-handbook.pdf; Jackson, R. (2013). Using conflict management panels to resolve tension in the second post-apartheid election: South Africa, 1999-2000. Innovations for Successful Societies – Princeton University. https://lawsdocbox.com/81640205-Politics/Using-conflict-management-panels-to-resolve-tension-in-the-second-post-apartheid-election-south-africa.html
95 In the 1994 elections, before the program was implemented, there were 3,558 disputes. Mediation was in place for the 1999 elections, and the number of disputes fell to 1,113.
96 Insertion of Sec. 103A to Electoral Laws Amendment Act, 2003 (No. 34 of 2003) (S. Afr.).; Tip, I. (2011). Do No Harm: Conflict Sensitive Election Design. In A. Iff (Ed.), Ballots or Bullets: Potentials and Limitations of Elections in Conflict Contexts (pp. 42-51). swisspeace. https://www.swisspeace.ch/fileadmin/user_upload/Media/Publications/Conference_Paper_2010.pdf
97 EISA. (n.d.). South Africa: Conflict prevention and management. African Democracy Encyclopaedia Project. https://www.eisa.org/wep/souconflict.html
98 The Electoral Court has final jurisdiction in respect of all electoral disputes and complaints about infringements of the Code, Sec. 96 of the Electoral Act, 1998. The Court’s jurisdiction to review or hear an appeal against an IEC decision is also set out in Sec. 20 of the Electoral Commission Act, 1996.
99 Project to Prevent, Mitigate and Manage Election-Related Conflict and Potential Violence in South Africa (PEV-RSA). (2018). Holding the electoral space: A toolkit on election conflict for the Electoral Commission of South Africa.
102 Senior IEC manager, personal communication, November–December 2021.
103 South African Government. (2021, October 27). MEC Lenah Miga visits the provincial joint operation centre ahead of local government elections, 28 Oct [Press release]. Retrieved from https://www.gov.za/speeches/mec-miga-visits-provincial-joint-operation-centre-ahead- local-government-elections-28-oct
104 Project to Prevent, Mitigate and Manage Election-Related Conflict and Potential Violence in South Africa (PEV-RSA). (2018). Holding the electoral space: A toolkit on election conflict for the Electoral Commission of South Africa.
105 Senior IEC manager, personal communication, November–December 2021.