SUBMISSION OF THE INDEPENDENT CANDIDATE ASSOCIATION SOUTH AFRICA IN RE: THE ELECTORAL AMENDMENT BILL [B1-2022]

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To: Mr MS Chabana MP
Chairperson of the Portfolio Committee: Home Affairs
And To: Mr E Mathonsi
The Committee Secretary
PER EMAIL: Electoralact1@parliament.gov.za

21 February 2022

SUBMISSION OF THE INDEPENDENT CANDIDATE ASSOCIATION SOUTH AFRICA
IN RE: THE ELECTORAL AMENDMENT BILL [B1-2022

1. As the Independent Candidate Association South Africa (“ICA”) we tender our submission to
the Portfolio Committee of Home Affairs as a response to the call for submission and
comment to the amendments contained in the Electoral Amendment Bill (B1-2022) (“the
Bill”). We also indicate our intention to make oral submission.

2. The ICA is an established Non-Profit Company (Reg No 2021/616521/08) with a
comprehensive Memorandum of Understanding (“MOI”) and Charter that has been adopted
by the Board of Directors through resolution on 05 February 2022.

3. The vision of the ICA is to be the preferred organisation for independent candidates in South
Africa, an association of independent candidates and a variety of affiliated organisations and
individuals that respect the interests of independent candidates and direct democracy in South
Africa. Our mission is to be the custodian of the platform that will activate, empower and
hold independent candidates accountable to their communities and to the values of the ICA.

4. Our objectives include:-
4.1. To promote, on a national basis, the common interests and the welfare of independent
candidates, having regard at all times to the broader interests of the electorate that
independent candidates serve. In addition we seek to reconcile and mediate in areas
of conflict between the independent candidates and the electorate they serve.

4.2. To assist independent candidates in maintaining their independence.

4.3. To initiate, consider, promote, support, oppose or endeavour to improve the
strengthening of existing or proposed legislation.

4.4. To represent and promote the interests of independent candidates.

4.5. To deal with any disciplinary matters regarding independent candidates.
We believe that the above mandate from the ICA, gives us the necessary locus standi to
present this application to the Portfolio Committee.

Preamble To This Submission

5. Many of the members of the Board of Directors of the ICA have been involved with the pursuit of direct elections for more than five years.

6. Our aim with this submission is to remain a constructive force, together with Parliament and all
interested stakeholders, to build on a future trajectory for national and provincial elections of our
country and to enhance and build on an inclusive and participatory democracy.

7. Electoral reform in our country is not a new concept and has been recommended and supported
through the years. Nelson Mandela, in his address at the final sitting of the first democratically
elected Parliament on 26 March 1999 said:-
“We need to ask whether we need to re- examine our electoral system, so as to improve the
nature of our relationship, as public representatives, with the voters.

8. This led to numerous and subsequent statutory and Government Commissions promulgating
electoral reform, some of which include:-

2003 The Electoral Task team (Van Zyl Slabbert Commission)
2006 The Govender Commission led by Hon Member Pregs Govender ANC
2006 COSATU called for a referendum on Electoral reform
2013 Private Member’s Motion by Hon Member James Self (DA)
2017 High Level Assessment on Key Legislation and acceleration of fundamental change by ex-President, the Honourable K Motlanthe
2020 Private Member’s Motion by Hon Member Mosiuoa Lekota (COPE)
2021 Majority recommendation of the Valli Moosa Ministerial Advisory Committee as appointed by the Minister of Home Affairs

9. All the above institutions, political structures and presidential leaders across the political
landscape has, for over 18 years, been supporting total electoral reform and the need for a
constituency-based system to enhance accountability.

10. In the 2019 national and provincial elections, we had 19,7 million potential voters that did not
vote, with only 17,6 million that did. We strongly believe we need to encourage a new electoral
system to encourage voter participation.

11. South Africa remains a constitutional state and we acknowledge and respect all the rights and
privileges afforded to us by our Constitution.

12. Our mission is to fulfil the very first principle of the Freedom Charter that was fought for and won by the attendees of the Congress of the People in 1955. The pledge reads as follows:
“The people shall govern! Every man and woman shall have the right to vote for and to stand
as a candidate for all bodies that make laws.”

13. We support Buckminster Fuller in his famous quote:
”You do not change things by fighting the existing reality. To change something, build a new
model that makes the existing model obsolete.“
The delay of the Parliamentary process in fulfilment of the Constitutional Court judgement

14. The Constitution guarantees the right to meaningful public participation. It asserts that South
Africa is a constitutional democracy that upholds representative and participatory democracy. The
intention of public participation and involvement in democratic processes is primarily to influence
decision-making processes that reflect ‘the will of the people.’

15. The ICA believes that Parliament has been negligent in its legislative duty to give effect to the
importance of the timeframes set down in the New Nation Movement judgement1
and their limitations on the public participatory framework.

16. We summarise the timeline as follows:

11 June 2020 The Constitutional Court judgment regarding the unconstitutionality of the Electoral Act

20 August 2020 Hon Lekota MP gives notice of his intent to submit a Private Members Motion regarding a draft amendment Electoral Bill (Notice 457/2020)

04 December 2020 Private Members’ Bill lodged in Parliament and advertised

16 February 2021 Private Members Bill presented to the Portfolio Committee Home Affairs

24 February 2021 Minister of Home Affairs nominates Ministerial Advisory Committee

09 June 2021 Ministerial Advisory Committee (MAC) report submitted to the minister of Home Affairs

21 July 2021 Briefing by Independent Electoral Commission (IEC) to Portfolio Committee re electoral systems

08 November 2021 Applicants of New Nation Movement write a letter of concern to the Speaker

24 November 2021 Draft Electoral Law Bill lodged with the Speaker of Parliament. Cabinet presented with the two options as contained in the draft and Cabinet minutes reflect that the two options be submitted to Parliament for approval

03 December 2021 Draft Electoral Bill presented and discussed in Portfolio Committee without formal procedures being followed, and without certification

06 December 2021 One South Africa Movement writes open letter to Minister of Home Affairs re concerns over the constitutionality of the Bill

31 December 2021 Draft Electoral Bill publishes memorandum without attached 1 New Nation Movement NPC and Others v President of the Republic of South Africa and Others [2020] ZACC 11; 2020 (8) BCLR 950
(CC); 2020 (6) SA 257 (CC) (‘New Nation Movement’) draft Bill asking for public comment

22 January 2022 Advertisement in different newspapers requesting public to comment before 21 February 2022

06 February 2022 Presentation of the two Electoral Bills to the Portfolio Committee. Desirability postponed of both Bills. Lekota Private Members’ Bill

17. The ICA hereby reiterates its concern regarding the time delays but in particular its dissatisfaction
of the limited public participation period of just six (6) weeks.

18. We are disappointed to learn from the Parliamentary Announcements tabled on 14 February 2022 published under the Portfolio of Home Affairs ”that public meetings will be held virtually on 01 and 02 March 2022. Also in the tabling of the announcement, public hearings in all nine provinces are discouraged to prevent further delay in processing of the Bill.“

19. The 2013 Public Participatory Framework for the South African Legislative Sector, seeks to inform, consult, involve and collaborate with the public whenever appropriate in order to achieve the highest levels of opportunity for input to the process for public participation.

20. This we believe will not pass the constitutional muster of public participation to give the public just over one month to make their submissions according to the Parliamentary programme published. The Opinion of Adv Budlender SC & Others

21. We take note that the Bill was drafted in furtherance of the Minority option of the MAC report, on instructions from the Minister of Home Affairs. The Minister’s preference of the Minority option is unexplained in the Memorandum that was presented to the Portfolio Committee and which accompanies the Bill. Furthermore,it is of concern that the minutes of the resolutions taking by cabinet in this regard is that Cabinet approved the MAC report but did not make a decision regarding which option they prefer. Cabinet left the decision to parliament. This is a concern and it remains for the Minister to explain his reasoning behind such an important decision.

22. This leads to a problem that there remains no clear distinction between the Executive and Legislative authority and powers. To be clear, Parliament was given the mandate by the Constitutional Court to amend and draft the amendment to the Electoral Bill. This mandate was not extended to the Executive. Yet the Minister seems to have taken this decision.

23. We also wish to bring to the Committee’s attention that the wasted votes discussed in clause 22.1 of the Opinion is not necessarily the case in local government elections. The definition of an ‘independent candidate’ includes movements and organisations in Section 15 of the Electoral Commissions Act 51 of 1996. All votes for such independent candidates are collated and qualify for proportional representation and are not disqualified.

24. The definition in the draft Bill, which we do not agree with, states that an independent candidate means “ a person contesting an election who is not nominated on a list from a political party.” We hereby submit that this definition in the draft Bill must include movements and organisations.

25. The Opinion does not clearly differentiate in clauses 23.1 to 23.4 that the first two rounds of the nomination of independent candidates for regional national seats is a division of seats and not the droop quota. This is only effected in round 3. The constitutional effect of this inequality is clearly defined in our Counsels’ Opinion and more fully explained in our Analysis Memorandum attached hereto as “ICA01” and “ICA02”.

26. We have a major problem with the effect of the hypothetical example in clause 25. Our Analysis Memorandum and Counsels’ opinion presents the case very strongly that the conclusion is incorrectly presented. The fact is that the Gauteng Legislature does not have 80 seats, but 73 seats. What this means is that when we use 73 seats for the same number of votes, independent candidates listed as 2 and 3 do not get seats and are thus prejudiced by 2 seats. What is more concerning is that they have more votes than Party D, which does qualify for a seat. This needs to be corrected. (Please see our Analysis Memorandum at pages 16 and 17).

27. We are concerned with the higher threshold regarding the qualifications to stand as an independent candidate, as well as the signatures that are required in the Bill. Whilst the question of a deposit required will be a requirement of the IEC, we believe this too to be an important issue to be legislated, that will not make it impossible for independent candidates to take part in elections.

28. Whilst the issue of vacancy is not dealt with in the Memorandum, the ICA does not support clause 11; Section 34 of Schedule 1A of the draft Bill regarding vacancies, that a seat will not be filled until the next national or provincial elections. Leaving the seat of an independent candidate unfilled in the event of a vacancy deprives the voters who elected the candidate of representation in the legislature.

29. We now deal with the answers to the Portfolio Committee’s four required questions as follows:-
How does the Bill matter to you?

30. There is no doubt regarding our Vision, Mission and Objectives (as spelt out above) that we have a vested interest in the Bill. Particular attention is drawn to clause 5.3 of our Charter which reads: “to initiate, consider, promote, support, oppose and endeavour to strengthen legislation, whether existing or proposed.“

How will the Bill affect the ICA?

31. The effect of the draft Bill will be a direct effect on fair representation and the interests of our
constituency of independent candidates in both national and provincial elections. The Bill, for a
number of well-defined reasons as presented in this Submission, we believe, does not pass
constitutionality, nor does not go far enough to give effect to the judgement of the New Nation
Movement.

32. Aside from the arguments concerning constitutionality and fairness towards independent
candidates, there is another argument to be made. Public trust in electoral processes is one the
most precious commodities in any democracy. Quite aside from any constitutional considerations, we believe this Bill might be perceived as a deliberate attempt to disadvantage independent candidates and that it aims to advantage larger parties, which will have the effect of doing great harm to our democratic order by diminishing trust in elections and in Parliament. Our legal arguments in support of our submission are presented in “ICA01” and “ICA02”.

Problems with the Bill

33. Our Constitutional Court has interpreted the right to free and fair elections to include the right to compete on equal terms. This draft Bill prevents Independent candidates from fairly and equally competing for public office. Froneman J. in his minority judgement in New Nation, further
warned that should independent candidates be included in our electoral system, the proportional
representation may prove to be a constitutional issue.

34. We believe that this provision in the Bill also violates the constitutional requirement that members to the National Assembly be elected in terms of an electoral system that results ‘in general, in proportional representation as Parliament will not reflect the votes cast by the electorate.

35. Our positions and problems with the draft Bill is well documented and presented in the
attachments to our Submission. Some highlights from those attachments include:-

35.1 The system proposed by the draft Bill breaks the principle of proportionality

35.1.1 Essentially, the Bill adds independent candidates to proportional representation calculations, which is a contradiction in terms as proportional representation is defined in terms of parties. This approach was seemingly chosen to find the simplest and least disruptive way to comply with the Constitutional Court ruling.

35.1.2 The key concept is to compare vote share with seat share. The current system guarantees that seat share cannot be more than the equivalent of a single-seat different from the vote share,
for any party. This is a fixed, mathematical constraint.

35.1.3 Because many more people can vote for an independent candidate than their share of the
seats, those excess votes are removed from the calculations. This means that political parties
have their seat shares “inflated” to the extent of votes not counting. There is no inherent limit
on this. This automatically means that the share of seats that a party has can rise above the
share of votes for that party. Obviously, this happens more with the larger parties.

35.1.4 There are also particular rules in the draft Bill that make it harder for independent candidates to secure seats, which means that a greater proportion of votes are “wasted”, which amplifies the effect of larger parties having a seat share higher than their vote share.

35.1.5 The first is that the National Assembly seats for independent candidates are calculated only
on 200 seats split among the provinces. This effectively doubles the threshold to get into
Parliament. The barrier is further raised by using a different quota calculation, and then by
excluding independents from the allocation of remainder seats. Thus, independents can fail to
get seats when they have many more votes than parties that are allocated seats.

35.1.6 The draft Bill thus makes it much more difficult for independents to be elected than parties
and then it grants the largest parties a substantial bonus number of seats compared to their
share of votes, at the expense of smaller parties and of independents.

35.1.7 Aside from anything else, this is unconstitutional, as the results cannot be described as being, “’n general, proportional representation, as the Constitution requires.

35.1.8 The end result is that few independents can ever be elected, while the largest party will have a seat bonus of between 3% and 10% over their share of the votes. The only alternative is to use the form of constituency system, as applies at local government. This is constitutional and
supported.

35.2 Independent candidates are excluded from being awarded compensatory seats

The effects of the draft Bill is that independent candidates can only stand for 200 of the 400
regional seats in the National Assembly. Thus, their seats require, on average, twice as many
votes as the requirement for political parties.

35.3 The omission of the droop quota in first and second allocation rounds

The result of this is that without the +1, the number of seats by which the total votes cast is
divided is smaller, leading to a higher quota in both rounds for seat allocations for
independent candidates compared to the quota utilised in respect of parties.

35.4 Wasted votes and surplus votes

This has been dealt with above. In principle, many more people can vote for an independent
candidate than their share of seats, those excess votes are removed from the calculations
under the Bill entirely. The seat shares of political parties are inflated as a result of their
receipt of surplus votes. Consequently, the seat share of a party will be above their vote share.
This does not result in proportional representation.

35.5 The Bill is not constitutionally compliant

The ICA is totally convicted that the draft Bill fails to pass constitutional muster and will be
challenged in the Constitutional Court should the Bill not be amended to comply with the
constitutional order.

Proposal to process the Bill

36. The ICA will not accept the limited planned public participation as envisaged by the Portfolio
Committee because of the Constitutional timelines set. We will not allow the destiny of a
nation and its people to be limited by timeframes, resulting from the inaction of Parliament to
address this constitutional mandate at their earliest convenience and giving it the importance
it requires.

37. The ICA confirms it will support an application to the Constitutional Court from Parliament
regarding the extension of time allocation to complete the Electoral reform process by another
six months. The ICA will act as amicus curiae to make our support conditional on the
following conditions:

37.1.That the public in the participation will be given the opportunity to consider both the
Hon Lekota Bill and the two options in the MAC report and give their comments and
their preferences.

37.2.A comprehensive public participation process must follow, including all provinces as they are all directly affected, for the “voices of the people to be heard”.

37.3.Clear timeframes and measurables will need to be put in place;

37.4.The integrity of the Constitution and New Nation Constitutional Court judgment is
upheld.

37.5.Parliament needs to work with the IEC to determine workable timeframes is vital;

38. A request to postpone the Portfolio Committee voting on the desirability of the Private
Members’ motion of Hon Lekota and the DHA Bill until public participation has been
completed and the electorate have indicated their preference for their electoral system.

39. That the Standing Committee seriously considers using the strengths of both bills as
presented as well as the majority recommended option in the MAC report to formulate the
new Electoral draft bill as contemplated.

40. ICA hereby confirms that we believe the majority option of the MAC report as presented
fulfils all our requirements as contemplated in this submission and is our preferred
recommended option.

41. The Hon Lekota bill took a legal team of six drafters more than ten months to draft and
introduced a very comprehensive Electoral Laws Second Amendment Bill. In contemplating
the two Bills, only Schedule 1A reflects the mechanics of the Bill and needs to be attended to
give effect to any recommendation from public and parliament.

42. Due to the limited timeframe allocations, we offer the services of our legal team to work
together with the parliamentary legal team and the legal team of the Minister of Home
Affairs, to finalise the Bill so as to pass the necessary stress test of constitutionality and new
dates set and agreed by the Constitutional court.

43. ICA hereby confirms that it is currently engaging senior counsel on the issue of whether we
may demand from the President a referendum on the nature of electoral reform to be adopted
in light of the Constitutional judgement in New Nation. The nature of the reform needed is a
matter on which the political parties and Parliament are clearly conflicted. This is so because
the parties are asked to consider reforms to a system which until now has protected them by
making it impossible for independent candidates to contest national and provincial elections.
The parties understandably will be reluctant to give up their dominance. In these
circumstances, it may’ procedurally irrational ’and thus contrary to the rule of law
(section1(c) for parliament to decide the matter without the President soliciting the views of
the public by way of a referendum. The outcome of such a referendum , even if not binding
, will guide Parliament as to the nature of the reform that should be pursued. It performs a
different function to public consultation. The latter invites the public to make reasoned
comments. A referendum is purely a quantitative assessment. The outcome reflects what the
majority of the people want. This is what’s needed in the present instance.

Concluding Remarks

44. The Constitutional Court has held that the vote of each and every citizen is a ‘badge of dignity
and of personhood’. Quite literally, it says that everybody counts. In a country of great
disparities of wealth and power it declares that whoever we are, whether rich or poor, exalted
or disgraced, we all belong to the same democratic South African nation; that our destinies
are intertwined as a singly interactive polity.

45. The heart of the ICA is to enrich our democracy and the people of our country need more
options – options that do not harm them, options that allow for new voices to be heard, new
actors to access public office that is accountable and representative of the people we serve.

 

 

Yours sincerely
Dr Michael Louis
Non-Executive Director
Independent Candidate Association

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