It is clear that Parliament will not be able to pass a constitutionally compliant electoral reform act by the December deadline, writes Michael Louis.
The lifeblood of our democracy is the right to vote. This is underpinned by the founding values in our Constitution: human dignity, universal adult suffrage, national common voters roll, regular elections and a multi-party system of a democratic government, to ensure accountability and responsiveness and openness.
Over the past five years, Princess Chantal Revell has fought to fulfil this constitutional right by ensuring South Africans are not limited in exercising this right. As the traditional leader of the Khoi and San people in South Africa, Revell has been fighting to stand as an independent candidate to represent her constituency in Parliament. She was an applicant in several high court applications, three constitutional hearings and a constitutional court victory on 11 June 2020 to give effect to her human right. Five years later, she is still not assured that her fight was not in vain.
Twenty-five months since ConCourt ruling
This constitutional court ruling ordered Parliament to change the SA electoral system to allow for independents, not aligned to any political party, to run for seats in Parliament. It has been 25 months since this ruling, and Parliament continues to deploy its “Stalingrad” tactics of duck, dive, dither and delay.
The Independent Candidate Association, which I chair, has since the inception of this process, made written submissions, oral submissions, attended public hearings, and made numerous written letters and emails to caution Parliament that the current electoral amendment law is fatally flawed and will not pass constitutional muster. Not only has Parliament rejected all our submissions, but not even considered or heeded our caution and all of that of many public and civil organisation submissions. This is negligence, and every political party on Parliament’s Home Affairs Committee is culpable.
Just this past Friday, 130 leading civil organisations attended an Electoral Reform Indaba hosted by Defend our Democracy, My Vote Counts, the Ahmed Kathrada Foundation and Rivonia Circle to chart a way forward. The Indaba was unanimous in its finding: that the current Electoral Amendment Bill will not pass constitutional muster and does not reflect the will of the people and the principle of “one vote is equal to one seat of equal value”. Thus, it must be rejected.
The Independent Candidate Association’s challenge is to balance the scales of justice in addressing this impasse between being a constructive force to honour and give effect to our constitutional provisions and not being part of leading our country into a constitutional crisis.
It is now clear that Parliament will not be able to pass a constitutionally compliant act by the 10 December 2022 deadline. I was part of the court action alongside Princess Chantal Revell in opposing government’s application that a six-month extension would be sufficient to pass a constitutionally compliant law. I have always been of the opinion that more time was needed to do this properly.
Our position has been consistent throughout.
Firstly, we maintain that the minority option of the Valli Moosa Ministerial Advisory Committee is fundamentally flawed and cannot pass the test of constitutionality. To inject independent candidates into the current political party system is shambolic and impractical. The system has numerous other constitutional flaws such as not complying to the principle “in general proportionality”, the case of vacancies, barriers to entry and only one ballot for the provincial legislatures.
To this end, the Independent Candidate Association has already instructed senior counsel and our legal team to start preparing papers to serve should Parliament go ahead with the current bill on 10 December 2022.
The alternative way forward is to incorporate some form of a constituency-based electoral system. We concede that the full submission of the MAC’s majority option might not be fully achieved ahead of the 2024 elections. However, a compromise option as submitted by the Lekota’s Private Members Bill and the Inclusive Society can be achieved. That is, a 66-region constituency model – the regions that already exist at a local government level.
A non-negotiable is a sunset clause that this bill will be only effective for the 2024 election and a comprehensive electoral reform process to take place post-2024. This option is our preferred option but will require more time. An additional six months extension for Parliament to achieve this will be supported.
Both these options will result in the Electoral Amendment Act not being passed before June 2023. However, the IEC communicated they need a minimum of 18 months to prepare and deliver a fair and free election.
Unlikely to have a different outcome
We agree with the matriarch of the IEC, Brigalia Bam when she told Friday’s Electoral Indaba that the IEC will be able to deliver a fair and free election, no matter what the timelines. This IEC is not alone, and to this end, civil society too has the responsibility to ensure they have the means to deliver, which no doubt will be a watershed election.
Civil society will in the next two weeks, finalise a consolidated submission to the Home Affairs Committee to address the substantial changes to the bill. However, we are not hopeful. Nothing new will come from the submissions as we are limited to the substantive issues listed in the advertisement. We are also not optimistic regarding the NCOP process of public participation. The NCOP is also limited in their scope. Moreover, the NCOP and the National Assembly share the same legal advisors therefore, there will not be a different outcome. Even more concerning is that the current Electoral Bill is classified as a Section 75 Bill, and Parliament does not need to accept the changes as recommended by the NCOP.
The fight might seem like a foregone conclusion, however, it is far from over. Over many years I have experienced the victories of ordinary people, which while they are sometimes a subtle reminder that we are the ones that hold the key.
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 is Chairperson of the Independent Candidate Association