By Michael Louis
Civil society has made submissions to the NCOP on 9 November, making a case for why the electoral reform bill is defective and cannot become law in its current form.
Last week Parliament sat to put the final touches on a piece of legislation that was initiated by a legal challenge that started in 2017 to end the dominant political party structure of government.
As civil society, we submitted our submissions to the National Council of Provinces on 9 November, making a case for why the bill is defective and cannot become law in its current form.
Many people and organisations constituted the revolutionary forces over many decades to fight for freedom in South Africa. There was many ideological outlooks and a rich variety of viewpoints, but the golden thread that united us all is encapsulated in the words “Amandla Awethu”- power to the people. In essence, the people shall govern through the right to elect a government of choice via the ballot box.
The journey continued with the culmination of many statutory commissions – the Van Zyl Slabbert panel report the Kgalema Motlanthe High-level Panel report and recently the Zondo commission, all calling for a new electoral system that will delegate the right to voters to directly nominate their leaders and make them more accountable.
Unfortunately government did not listen nor take heed. It did not have the will to change, and it was civil society that had to go to the highest court in the land to force government to legislate a new Electoral Act. On 11 June 2020, the Constitutional Court issued a favourable judgment, and the Electoral Act was ruled unconstitutional, and Parliament was given two years to remedy the flaws.
Viewed in the wrong light
Parliament has, from that moment, viewed this issue as an administrative issue and not a constitutional human rights issue. The Minister of Home Affairs decided not to follow his Ministerial Advisory Committee majority report and decided to rather pursue minor cosmetic changes, which render the new bill unconstitutional as it stands.
Two and a half years of public submissions, petitions, letters, public awareness campaigns and media engagement from civil society has ensued, warning Parliament that the system chosen can and never will pass constitutional muster and does not pass the test of one seat, one vote of equal value. This opinion was supported by many senior counsel opinions and legal experts. The strongest of these voices against the system chosen is the Chairperson of the Ministerial Advisory Committee, Valli Moosa, who made this powerful statement:
“The system proposed in the new electoral system is not backed up by any form of literature analysis and does not exist anywhere in the world. At our committee not a single party (majority party included), academic, submitted or published an analytical paper explaining the wisdom of the proposed electoral system. The result is an irrational piece of legislation and a disaster in waiting.”
In my 28 years on the political landscape, I have never come across the level of criticism and public rejection of the bill by powerful figures. In addition to the 77 civil society organisations that have stood up to this bill, two former Presidents have also come out and given instructive insight and warning.
Former president Thabo Mbeki recently revealed that he was present at an ANC NEC meeting where a member of the NEC suggested that the party will change the design of the electoral system to ensure that the ANC wins in the next elections. He went on to say that most of the NEC members have no idea of the bill and its effects.
Another former President Kgalema Motlanthe, said, “Either parliamentarians didn’t give themselves sufficient time or they just not inclined to have constituencies and have themselves run for election in constituencies and be accountable. It is open for challenge and may not be certified by the Constitutional Court.”
Forty-two days to consider
Last week was the last chance for any public submission on this bill before it is required to be signed into law by the President on or before 10 December 2022 – as ordered by the Constitutional Court. There are less than 20 working days until that date.
I analysed all bills signed into law by the President during the 5th Parliament – from 2014 until 2019 and found that it took on average 42 days for the President to consider, apply his mind and sign a bill into law. It is clear the President will not have enough time to apply his mind and be able to do justice to one of the most important pieces of legislation since the dawn of our democracy. Civil society will be encouraged to petition the President not to sign the bill on this basis alone.
The Independent Electoral Commission (IEC) has already suggested some critical changes to the bill, which must happen. The result is that the bill will be sent back to the Home Affairs Committee and the National Assembly to vote and pass the bill. This will take the process into December 2022 and less than a week for the President to apply his mind before signing. The bill before the NCOP is seriously defective is shamefully cynical of the Constitutional court order, and insults the electorate.
There are only three options available:
The Speaker again applies to the Constitutional Court for a condonation application for a postponement with another three months to the deadline of 10 December for Parliament to apply their minds properly and consider all public submissions.
Parliament pushes the process of the bill to be passed, which civil society will challenge constitutionality in court and place a minimum delay of 8 months.
Once the Bill is passed by the NCOP and again the National Assembly, the President does not sign the bill, but himself refers the bill to the Constitutional Court to determine constitutionality. This is our preferred option.
The fact is that the countries do reform political systems, but not without a mass uprising of the important voice of civil society. We must not surrender and not give up.
In the end, politicians will realise their futility in silencing the valuable input and contributions from civil society. We remain their arm bearers and act in their interest, and are not their enemy. They will realise once again that the collective voice of society is more powerful than that of a party. They will learn that he is not in the hands of political parties to determine our next government and the future, but it has been and will always be in the hands of the people.
- Dr Michael Louis chairs the Independent Candidate Association (ICA).