Electoral Bill: Missed Opportunities and Unconstitutional Quagmire
The new Electoral Amendment Act was signed into law on 17 April this year. Unfortunately, it fails to comply in any meaningful manner with the constitutional court’s order that the government should amend the Act to make it possible for independent candidates to stand in national and provincial elections.
In New Nation Movement NPC and Others v President of the Republic of South Africa and Others (“New Nation Movement”), the court found that the Electoral Act was unconstitutional because “citizens may be elected to the National Assembly and provincial legislatures only through their membership of political parties”. Parliament was given two years to remedy the defects resulting in this unconstitutionality.
Many optimistic observers saw the constitutional court’s judgment as an opportunity for the government to make parliament more accountable to voters by introducing constituencies into the electoral system. The bill lamentably failed to do so — or even to make meaningful provision for independent candidates to stand in national and provincial elections, as had been ordered by the court.
The Act seeks to accommodate independent candidates in multi-member constituencies based on entire provinces — with the following unacceptable implications:
- Province-sized constituencies would be too large to permit the special type of relationship required between the elected representatives and their communities that true responsiveness and accountability require.
- The newly accommodated independent candidates who, by their very nature, generally emerge from specific communities, would find it difficult to compete effectively in single province-scale constituencies and would be at a disadvantage vis-à-vis much better resourced political parties.
- The Act would also give an unfair advantage to candidates backed by political parties by requiring independent candidates to garner more than 8 000 voter signatures to be eligible to register for elections, while political parties would require just 1 000 signatures.
- Should successful independent candidates vacate their seats, the Act would require a recalculation of representation that could result in their seats being filled by members of political parties instead. This problem could have been easily resolved by making provision for vacancies to be filled through by-elections, a point that was raised in multiple submissions to parliament.
Most alarmingly, the Act negates the cornerstone of any democratic and free society: one person, one vote. Candidates would be elected if they receive a previously calculated quota of votes. But votes for independent candidates that exceed this quota would simply be lost and all votes cast for candidates who are members of political parties would accrue to their parties for the purposes of proportional representation. This would result in a constitutionally unacceptable situation in which votes cast for independent candidates would have less value than votes cast for members of political parties.
The real pity is that the government failed to seize the opportunity presented by the constitutional court’s order to remedy long-standing defects in the electoral system. The Constitution did not envision that the current electoral system of proportional representation would extend beyond the first two democratic elections.
On 20 March 2002, the government appointed an electoral task team under the chairmanship of Frederik van Zyl Slabbert to “draft new electoral legislation required by the Constitution”. In January 2003, the Van Zyl Slabbert Majority Report recommended a “mixed system” in which 300 members of the National Assembly were to be chosen from multi-member constituencies and the remaining 100 on the basis of the current proportional representation list system. The majority report proposed that 69 multi-member constituencies be established and that, depending on the number of voters in such a constituency, the number of MPs representing that constituency could vary from three to seven MPs. In the view of the majority, this would provide greater accountability of MPs to voters.
Sadly, the majority report was never adopted. At the time, there seemed to be little political appetite for electoral reform from the governing party, and the time constraint for such legislative changes (considering the 2004 general elections) was a critical hindrance. Sound familiar? Twenty years on, the same time constraint has re-emerged.
The Electoral Commission of South Africa (IEC) has indicated that it would require some 18 months to prepare for elections, meaning that any further delay that might arise from a successful challenge to the new Act might jeopardise the 2024 election. Furthermore, the only way that the election could be postponed would be by the adoption of a constitutional amendment or by a ruling of the constitutional court — both of which are unlikely.
All this will create a serious problem for the IEC. According to the IEC’s former deputy chairperson, Terry Tselane, “If parliament is not able to rectify defects, it basically means that it is not going to be possible for the IEC to implement an Act that has been declared unconstitutional by the constitutional court.” If the new Act is declared unconstitutional it is unlikely that the constitutional court would, or could, postpone the 2024 election. It might order the government to remedy the defects in the Act for future elections and rule that the 2024 election should be held under the old Act — or the new Act — only for this election. Both of which represent a constitutionally unacceptable situation.
Whatever happens, a successful challenge to the new Act would reflect badly on the government’s willingness or ability to obey a clear order of the court.
The Electoral Amendment Act represents a missed opportunity for the reform of the electoral system not only to allow independent candidates to stand in national and provincial elections, but also to make elected representatives accountable to the voters of South Africa, rather than to their party bosses.
First appeared on Mail & Guardian on 25 April: bit.ly/3LtBkxY
Image © Armand Hough/ African News Agency (ANA)