Inasmuch as electoral systems should not be designed to favour political parties, they should also not be moulded to cater for independent candidates. Electoral systems should primarily be about what works best for voters. Bestowing upon the voter that most fundamental of rights in a democratic society — confidence in an electoral system — must be sacrosanct. It is a founding value of the constitution.
“Universal adult suffrage, a national common voters roll, regular elections and a multiparty system of democratic government to ensure accountability, responsiveness and openness.”
Constitutionally, parliament has the authority and duty to design an electoral system necessary to regulate the exercise of the right to vote, which must result, in general, in proportional representation.
On April 13 President Cyril Ramaphosa signed the Electoral Amendment Act 1 of 2023, the bill having been passed by parliament on February 23. The genesis of this amendment can be traced back to the Constitutional Court judgment in the New Nation Movement case in June 2020. The court declared the Electoral Act unconstitutional in that it failed to make provision for individual candidates to contest national and provincial elections, except through political parties. In other words, it opened the door for the participation of such candidates in these elections. But the court was careful not to stray into parliament's terrain and did not prescribe what the new electoral system should look like.
Parliament was given 24 months to fix Electoral Act defects so the court’s injunction that a new electoral system should be ready for the 2024 elections would be adhered to. It is now well known that parliament failed to meet this deadline and sought two extensions to comply with the judgment. Next year's polls are due to take place between May and August.
Despite being presented by the Electoral Commission in August 2020 a detailed timeline of how the parliamentary process and preparations for these elections could be managed to meet the court deadline, parliament took no heed. It allowed itself to be manipulated by home affairs minister Aaron Motsoaledi, who took nine months to announce the formation of a ministerial advisory committee (MAC) headed by Valli Moosa. To its credit, the MAC produced a report within three months, but it was only several months later that the minister tabled a draft bill in parliament.
Even then he ignored the recommendation of the majority of MAC members to establish a hybrid electoral system, with 200 members elected by single-member constituencies and a further 200 from a party list system to ensure “general proportionality”. The act that has just been signed creates a unique system in which the playing field is not level. In essence, it retains the current model and pits independent candidates against political parties in province-wide constituencies, called “regions” in the act. Unlike at local government ward level, where independents are up against named candidates from political parties, here they contest against party lists with all the latter's organisational advantages.
Huge, maybe insurmountable hurdles are placed before independents can qualify to be on the ballot paper. To contest a seat in the National Assembly, depending on where they are from, an independent candidate must get between 10,271 and 13,890 signed endorsements from voters in their province, equivalent to 15% of the quota to secure a seat in the last election. This will be no easy task. New or at present unrepresented political parties are subject to the same obligations. Currently, represented parties — those that have crafted the new legislation — were required to submit only 1,000 signatures when they registered with the Electoral Commission.
It is poorly conceived and ill-advised legislation, made more egregious in that it pertains to the right to vote, a cornerstone of the valiant struggle for national liberation
Concerns have been raised about the excess or wasted votes of successful independent candidates. Assuming 45,000 votes are required to secure a seat in the National Assembly and an independent candidate gets 90,000 (enough for two seats), the excess votes are redistributed and a further calculation is conducted to share the ill-gotten spoils among the larger parties. It is trite that an individual cannot hold more than one seat. A similar scenario may arise if an independent contests and gains seats in more than one province — they will be allocated a seat in the area in which they performed best and votes garnered in the other province(s) will also be redistributed, negating the intent of the voter. The unfairness of this exposes the absurdity of the new act. It is a wholly inappropriate mechanism to facilitate the participation of independent candidates.
It is poorly conceived and ill-advised legislation, made more egregious in that it pertains to the right to vote, a cornerstone of the struggle for national liberation. But that does not necessarily render it unconstitutional? Parliament is afforded wide latitude in designing an electoral system and the courts will be reluctant to second-guess the policy choices of another arm of the state. A thin line between political and legal failure, perhaps.
The fallacy of this system is acknowledged in the act itself, as it enjoins the minister of home affairs to establish a nine-member electoral reform consultation panel “to independently investigate, consult on, report on and make recommendations in respect of potential reforms of the electoral system for the election of the National Assembly and the election of the provincial legislatures, in respect of the elections to be held after the 2024 elections”.
An umbrella group of civil society organisations, including the Council for the Advancement of the South African Constitution (Casac), has called for some type of constituency-based electoral system, whether single-member or multi-member, to address the accountability deficit that threatens to undermine the gains of our constitutional democracy. The Zondo commission laid before us, in graphic detail, parliament's shortcomings in confronting abuse of executive power, primarily because MPs are beholden to party bosses and not directly accountable to voters.
While parliament failed to grasp the opportunity presented by the New Nation Movement judgment to facilitate a proper national debate on electoral reform (as it has done on many occasions, including by its high-level panel chaired by Kgalema Motlanthe), a further opportunity is at hand. It is up to us to ensure the home affairs minister and parliament are not allowed to drop the ball again.
* Naidoo is the executive secretary of Casac
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