ANALYSING THE IMPACT OF ELECTORAL LAWS ON CONSTITUTIONAL INTEGRITY

Issued by Ezra Mendel, Siyakudumisa Zicina and Ismail Joosub on behalf of the FW de Klerk Foundation on 9/05/2024

Introduction

There is no doubt that the times we live in are unprecedented, some ascribing them to a ‘New Cold War’. Even in times of great uncertainty and heightened geopolitical tensions, the importance of elections, progress and democracy still prevail. Elections are when the ‘social contract’ between those who govern and those who are governed becomes most apparent. 2024 is the year in which many societies around the world will witness elections worldwide, from democracies to electoral autocracies. Prominent political scientists, such as Samuel P Huntington, have written  extensively on how numerous states transition or have transitioned to democracy, however, the true test of a democracy lies in its durability – or, what is known as, democratic consolidation.

South Africa is set to hold  its seventh general elections, since it held its first democratic election in 1994. The African National Congress (“ANC”) has solely governed over South Africa for the last three decades, but the nation is now bracing for what looks like the greatest test of our democracy. While this test remains to be seen, we can be certain that Pretoria will witness the ‘wind of change’ blowing in its 2024 electoral processes, trajectories and outcomes. 

Will it emulate ‘Huntington’s Two Turnover Test’, where power is handed over peacefully? Or, echo a ‘coalition government’ where there is power sharing between two or more political parties due to the tallying of votes following elections? Certainly, the aftermath of the 2024 elections will tell. This piece assesses recent court judgements, electoral laws and legislative developments to gauge their impact on South Africa’s constitutional integrity, as far as electoral laws are concerned. 

‘Pretoria as a Constitutional Champion’: Was or Still Is?

The electoral process and the laws and institutions that govern it remain a key feature in democratic consolidation. Critically, electoral laws seek to foster and promote the protection of political representation, inclusivity, transparency and accountability, as well as to ensure democratic checks and balances.

A  survey commissioned by the United States Supreme Court judge Ruth Bader Ginsburg found that South Africa’s Constitution is the second most cited Constitution globally, after Canada. Thus, clearly we have a world-class Constitution.

Recent events, such as the July Unrest, have raised questions on our supposedly brilliant Constitution as we witnessed a lack of enforcement of constitutional laws and our vulnerability to breaking those laws. With this, amongst other factors serving as the backdrop to these elections, one must reiterate the importance of electoral laws in upholding the Constitution.

To strengthen South Africa’s constitutional democracy, the Constitution makes provisions for “Chapter 9 Institutions”, one of which is the Electoral Commission of South Africa (“IEC”) whose role is to “implement and oversee the application of electoral laws”. Recently, the Democratic Alliance (“DA”) came under scrutiny for requesting international electoral observers to assist South Africa in the upcoming elections. Although this was done out of concern for electoral and constitutional integrity, the ruling party (the ANC) and other parties saw this as undermining the credibility and capabilities of the IEC. 

The larger debate at hand is that this potential divergence of interests may undermine the ability of the IEC to function competently as per the Constitution. Section 190(1)(c) of the Constitution explicitly lays out the functions of the IEC, in that the role of the IEC is to “ensure that elections are free and fair”. 

Such debates indicate that Pretoria still faces struggles and challenges in its electoral journey that is in line with constitutional pillars of equality, unity and progress, but recent legislative trajectories seem to change the existing narrative.  

Electoral Efforts Towards Constitutional Integrity?

South Africa’s pioneering Constitution has, since 1996, granted all citizens aged 18 years and older the right to vote, but the 1998 Electoral Act (hereinafter “Electoral Act”) has limited electoral participation only to those that are affiliated with political parties. Such legislative constraints on who is eligible for political office constitute a negation of several rights as inscribed in the Constitution, denying many the right to equality and freedom of association. Several observers raised questions about the ‘constitutionality’ of the Electoral Act, among those was the New Nation Movement

This non-partisan movement has been striving for a ‘mixed–electoral system’ that could create room for both candidates in political parties and those who are independent to stand for elections. After a year-long judicial battle for a fairer-inclusive electoral system that is in accordance with the Constitution, the June 2020 Constitutional Court judgement marked the beginning of game-changing rules within South Africa’s electoral system. The court handed a judgement that the Electoral Act was “unconstitutional” on the basis that it systematically deprived several willing citizens of the platform to contest in national and provincial elections as independent candidates. Its unconstitutionality stems from the fact that the Electoral Act has appeared to negate South Africa’s democratic values, especially those stipulated within the Bill of Rights (section 9):

“Everyone is equal before the law and has the right to equal protection and benefit of the law… Laws may not unfairly discriminate against anyone and everyone is entitled to equal rights and freedom.” 

The judiciary had to step-up. Thus, the court provided Parliament with a 24-month window to amend the Electoral Act accordingly. On 17 April 2023, President Ramaphosa signed the Electoral Amendment Bill into law. As a game-changer, the Amendment Act allows for (a) the inclusion and nomination of independent candidates as contesters to national and provincial elections, (b) revised formula for the allocation of parliamentary seats and re-allocation of seats should there be vacant seats. 

This means that other than having political parties as sole candidates for public office, independent candidates are now eligible to stand for national and provincial offices. If anything, these developments suggest that South Africa is attempting to better its electoral laws to make them fairer and more inclusive. Such trajectories should not go unnoticed, as they reflect South Africa’s restoration efforts towards constitutional integrity through electoral laws. 

While progress is evident, there is still a long way to go. Despite the court’s order to remedy this constitutional flaw, the Act maintains a system where only political party members can be elected, neglecting to introduce constituencies into the electoral system. The Act’s provisions for independent candidates are, still, largely inadequate, creating unfair disadvantages – such as requiring an impractical number of voter signatures and risking the loss of votes exceeding a calculated quota.

Furthermore, it disregards the foundational principle of one person, one vote, by devaluing votes for independent candidates compared to those for party members. This failure to address long-standing electoral defects highlights a missed opportunity for reform and accountability. The Act’s shortcomings, echoing past recommendations for electoral reform (see Van Zyl Slabbert Report), underscore a persistent reluctance to address structural flaws in South Africa’s electoral system, threatening the integrity of democracy.

Conclusion

South Africa’s journey towards electoral integrity faces hurdles despite recent legislative strides. The 2023 Electoral Amendment Act allowed independent candidates, yet flaws persist – including the lack of constituency representation and unfair barriers. These shortcomings defy constitutional principles of equality and democratic representation, threatening the nation’s democratic fabric. As South Africa approaches its seventh general election, addressing these challenges is paramount. True progress hinges on ensuring electoral laws align with constitutional integrity, fostering inclusivity, fairness and genuine representation for all citizens. Only then can South Africa reaffirm its commitment to democracy and inspire confidence in its electoral processes. Only then can Pretoria truly be called a constitutional champion. 

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