Approval of Electoral Amendment Bill is yet another constitutional crisis in the making

By Michael Louis

Civil society has been given no other option than to rely on the courts and civil mobilisation to realise its constitutional rights and reform this electoral system.

Wednesday 12 October 2022 marked a Kairos day in 28 years of democracy when Parliament’s Portfolio Committee on Home Affairs approved the Electoral Amendment Bill to be sent to the National Assembly to be debated.

October 10 marked another critical day in the fight for real electoral reform when a multilevel political campaign was launched by several civil society groups including Defend Our Democracy and Rivonia Circle.

I was privileged to participate in the launch representing the Independent Candidates’ Association. A large part of the call from activists, academics, and members of civil society was for members of Parliament not to support the current version of the Electoral Amendment Bill.

During the campaign launch event, two very important questions were raised.

Firstly, whether the process was a sincere attempt by members of the portfolio committee or whether there was an attempt to derail and delay the bill. In other words, derailing the impact of the Constitutional Court judgment by delivering a bill that makes cosmetic amendments to the act and delaying the bill by moving slowly and deliberately choosing a draft bill that will be challenged in the Constitutional Court.

The second question asked was whether the President himself is conflicted as a party man who has proclaimed that the ANC comes first to him if he had to be petitioned as a final attempt to stop the bill.

I have strong opinions about both questions as my interest and the focus of my personal original application was on the constitutionality of the Electoral Act. I have followed the process over the past two years, and I have participated in both public and parliamentary meetings and believe I have the experience and facts which are material to the answers to these questions.

I do believe that the Members of Parliament have taken their positions from the mandate of their political parties with an element of self-preservation. But I am also of the view that they have been wrongly advised by a full complement of legal advisers, which include the parliamentary legal services, state law adviser, Department Of Home Affairs’ legal counsel and the Independent Electoral Commission (IEC) on the issues of the constitutionality of this bill.

Instead of applying their minds and acting in line with the spirit of the Constitutional Court judgment, they need to take the blame for the trajectory followed by this bill of supporting an electoral system that could never work.

In all the meetings that I have attended the members have not considered the external legal advice received regarding the unconstitutionality of the bill. The main constitutional legal questions that this bill will rise or fall on are the following:

Firstly, there is the issue of proportionality. I do not believe the parliamentary state attorney adequately applied his mind to sections 46 and 105 of the Constitution which deal with the requirement that the election must result in “in general, results in proportionality” when he certified the bill as constitutionally compliant in December of 2020. This was the start of a legislative journey with no turning back.

As civil society, we lodged two senior counsel opinions as well as oral and written submissions regarding this critical question, and amazingly the standing committee has not even debated the issue of how this electoral system cannot work and will result in a system that has never been tried and tested worldwide.

On numerous occasions, civil society has asked Parliament if we could present our case to explain that pressing ahead with the proposed version of the bill will lead to some wasted votes and the bigger parties gaining additional votes which would not lead to “one seat is equal to one vote of equal value”.

The only recurring response we have heard from the standing committee is that all over the world there are wasted votes and an independent candidate represents only one person and cannot qualify for compensatory seats. This represents a total misunderstanding of our submissions. The committee did not acquiesce to our applications.

The second legal issue is that of fairness as it pertains to barriers to entry. The draft will lead to independent candidates requiring in some cases as many as 68,000 (Northern Cape) and 92,000 (Gauteng) votes to get a seat in Parliament while members of a party will only need to get 43,000 votes on fractions (based on the 2019 election figures) to be able to get a seat. This is clearly not a fair system and not in the spirit of the 2020 Constitutional Court judgment.

In addition to a higher threshold for a seat, an independent candidate has been burdened with a higher threshold of signatures for registration. They are required to attain 13,600 to 18,400 supporting signatures while a new political party is only required to have 1,000 signatures — a travesty. Fairness is a critical component of any election process, and these draft proposals undermine the principle and practice.

The third issue is that of additional votes received by a candidate beyond those required for the parliamentary seat. The bill makes a provision that in the compensatory seats (proportional representation) the ballots will work in a similar manner to that in local government and will be added together to determine proportional representation.

It is not acceptable for independent candidates to stand to be elected on all the regional lists while their votes cannot be aggregated when the ballots are combined, while this remains possible with political parties. This is a clear constitutional oversight and in our submission, to the committee, we confirmed that we will be challenging the local government combining of ballots simultaneously.

Finally, the bill has been incorrectly classified. Originally the bill was lodged as a section 76 bill because it affects the provinces and therefore mandates must be debated and received from the different legislatures.

Without our knowledge, the bill has now been reclassified as a section 75 bill by the tagging mechanism committee. We do not understand how legal could support a section 75 classification and that this bill does not affect provinces.

Interestingly legal counsel to the Department of Home Affairs has confirmed that they will be submitting a supplementary legal opinion to the department regarding the input received from the supplementary public participation process, which still has not been received.

The portfolio committee confirmed that they believe the bill reflects the majority of submissions made by the public participation process. I confirm that out of my three different comprehensive submissions on behalf of my organisation, none of the salient features has been included nor debated.

Returning to the question of whether the President will still sign this problematic bill despite the submissions made by civil society and the legal input that has been provided and whether it will be worthwhile to petition the President:

My view is that the President has not fully applied his mind yet to this bill and we should give him the benefit of the doubt.

The bill was lodged by the minister one day before the Cabinet meeting. Cabinet only approved the Ministerial Advisory Report submitted by Valli Moosa and only attached the draft amendment bill for Parliament to determine the system recommended by the report.

Effectively Cabinet did not debate all the options and did not approve the minimalist version of the Electoral Reform Bill. I am also reliably informed that the majority party has not yet made a policy decision on whether or not they support a constituency-based system.

The most disappointing and lasting concern I have regarding this process of electoral reform that I have taken part in for the past five years is that civil society is regarded as the enemy and its constructive and sincere voices are not recognised.

Civil society, therefore, has been given no other option than to rely on the courts and civil mobilisation to realise its constitutional rights and reform this electoral system in such a way as to give back the people their rightful power to directly elect our representatives in a system that reflects the will of the people.

The big question that will remain beyond today is what we do when we cannot even rely on the professional advice of those placed in a position to caution our Members of Parliament on legislative reform that will be constitutionally compliant. Too many cases are ending up at the Constitutional Court for interpretation.

Our President called for civil society and business to be true partners of the state. My experience of this process is that it is a partnership that has failed and is a disaster in the making that could lead to a constitutional crisis yet again. DM

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