MK party’s vote-rigging case against IEC is strong on theatrics but weak on evidence, say legal experts

MK’s national organiser, Nkosinathi Nhleko. (Photo: Deon Raath / Gallo Images / Beeld)

The case against the Electoral Commission of SA (IEC) by Jacob Zuma’s uMkhonto Wesizwe (MK) party is big on theatrics, claiming that more than 9 million votes are unaccounted for in the election.

It’s a claim that election and legal analysts say will be difficult to substantiate, particularly if the party has not fully revealed how it reached that number.

The MK party has refused to accept the outcome of the 29 May national election, claiming vote-rigging. The party obtained 14.6% of the votes, translating to 58 seats in Parliament. John Hlophe, who was impeached as a judge, is set to lead the party’s parliamentary caucus when it eventually takes up its seats.

Bold statements

The MK party makes several bold statements in its papers before the Electoral Court, including that it believes it should have won the polls outright.

“Had the elections been conducted in a free and fair manner, [the party] would in all likelihood have won the national and provincial elections,” says the party’s national organiser, Nkosinathi Nhleko, who deposed the founding affidavit and is a former Cabinet minister who controversially defended Zuma’s swimming pool built with state funds as a “fire pool”.

He argues that there is “evidence of serious electoral irregularities”. The party is relying on an analysis done by unnamed experts.

“There is evidence that, because of the deficiencies in the process, the results captured at the voting district differed from those that were reflected in the leader board by the IEC. In some instances, the differences were vast, while in others the differences were minor,” says Nhleko.

His affidavit is accompanied by “a document prepared and analysed by the experts of the Applicant”. It is not a full report, but rather a table that summarises alleged discrepancies in votes.

The MK party uses the “registered vote count by province” and “votes cast” numbers to conclude that there is a disparity of 9,336,828 votes.

However, lawyer Mpumelelo Zikalala says the MK party appears to be applying a “reverse onus”, putting the burden of proof on the IEC.

“One of the rules that applies in court, the law of evidence, is if I am alleging something [is] wrong, I am the one who must prove it. What I thought the MK [party] would have done is identify specific issues at voting stations and attach the result slips. They could ask for a recount based on that,” he says.

Zikalala adds that the party’s case is “not strong in terms of evidence”.

“If there is evidence that looks at an expert report, you have to include the qualifications [of the expert who produced the report]. You have to explain the methodology. You have to do the homework behind the preparation of court papers,” he says.

Zikalala also notes that the party has not explained whether it considered the third ballot, which was a new addition to accommodate independent candidates.

The MK party also argues that the IEC’s election system and dashboard were compromised, citing an unnamed expert.

“The IEC reported only a single systems failure when, in fact, there is evidence that there was no movement of data during the capturing of election results in other instances,” Nhleko says.

He adds that alleged system failures could be attributed to 16 potential issues, including malware, cyber­attacks, processor overheating, human error, computer memory problems, insufficient system resources and driver issues.

Legal expert Benedict Phiri says these “theories” will not be enough for the MK party to win its case. “[The party] has not put a case to the IEC. They are not saying what has actually happened; they are saying what could have happened,” he says.

Elections analyst Wayne Sussman is also sceptical, saying it is “highly unlikely that 9 million votes could go missing”.

“If that was the case, we would be hearing from parties across the aisle. It’s implausible. It is an astonishing number,” he says.

Sussman adds that the way that votes are counted would make it difficult to explain such a disparity.

“The IEC has thought about this for many years. When polling stations close, they are converted into counting stations. Any party is able to put a party agent at the station to observe the count,” he says.

He adds that “mistakes can happen” at the tabulation stage when results are transferred to a central system, but these can be picked up and corrected.

The IEC has confirmed receiving the MK party’s application, but is yet to file a response.

“The commission is still awaiting directions from the court in order to comply with the matter. However, consideration of responses is under way,” says IEC spokesperson Kate Bapela. “Where there are truthful submissions, the commission will acknowledge [them], and where there are incorrect and un­­substantiated submissions, the commission will also make it clear to the court.”

ATM wants results cast aside, targets IEC’s credibility

The African Transformation Movement (ATM) has also brought a case calling for the election results to be nullified. The party has highlighted several points, including problems with the voters’ roll, malfunctioning voter management devices (VMDs), alleged mishandling of ballot boxes and the miscapturing of votes.

“Some voters were not on the voters’ roll for the voting districts they have registered at, but were informed their names appear in the voters’ roll elsewhere in another voting district. This disappointed the individual voters, most of which could not vote, very few managed to be transported to the voting districts where it is alleged their names appeared,” said party president Vuyolwethu Zungula in an affidavit before the Electoral Court.

The party also complained that issues experienced with VMDs on election day affected the outcome of the election.

“The malfunction of the VMD has participated [in] voter fraud; it has made it impossible to curb or prevent double voting. The VMD has not been helpful for the purpose for which it was designed for. Again, this has compromised the freeness and fairness of the elections, most importantly the credibility of the commission,” Zungula said.

Legal expert Benedict Phiri said that, although the ATM had attached some vote-counting slips that indicate errors, it was not clear whether these errors were material.

“On one of the documents, it mentions something like 284 votes miscounted. If that’s the area of play, then there will be a question of materiality.”

Phiri said the ATM did not substantiate all its allegations and this could affect its case.

“This is a very serious thing to attack the integrity of the election and I would certainly expect more [evidence of it],” he said.

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