It is not by chance that currently more than 77 civil organisations, including religious, business and trade unions, are unsettled, and the objection to the current draft Electoral Amendment bill, passed by the standing committee last week, is gaining momentum, writes Michael Louis.
Home Affairs Minister Aaron Motsoaledi is playing Russian roulette with our right to vote.
He has sidelined civil society and continues to approach the Electoral Amendment Bill as an administrative issue and not one of the most profound human rights issues, the right to vote.
This Saturday, I was privileged to listen to the 13th annual lecture of the Ahmed Kathrada Foundation given by veteran activist and respected leader Valli Moosa. His address was as expected: thought-provoking, inspiring, factual and very relevant, coming from a man that was Deputy Minister of Constitutional Affairs during the constitutional negotiations and assisted with the drafting of the South African Constitution, which was passed in 1996. His address was titled “Let the People Govern”, and he quoted from the words on the Freedom Charter – “The people shall govern. Every man and every woman shall have the right to vote for and to stand as a candidate for all bodies which make laws.”
Throughout my journey in electoral reform over the past five years, these words have been the main focus and now is the time for a new electoral system, new leaders, and a new breed of South Africans who love and are committed to their country.
A broken system
We all know our political system is broken and are well aware that our problem is much more complex than just narrowly remedying our electoral system to include independent candidates.
Unfortunately, since the Constitutional Court ruled on 11 June 2020 that the Electoral Act is unconstitutional, the Minister of Home Affairs decided to take the limited route and follow the minority report as recommended by the Ministerial Advisory Report to only make minor adjustments to the current law.
Little did they understand that the minority recommendation was never a system that could pass constitutional muster and should not have been considered. This decision was made by the Minister himself, and instructions to counsel to draft a new bill in record time was not with the support of Cabinet nor of his party. It is a fact that to date the governing party has not yet made a policy decision on their preferred electoral system.
My experience has taught me that once you start taking shortcuts, not following recommended procedures and not applying your mind properly, you will keep on covering up and trying to justify yourself. The process and result will eventually catch up with you.
The facts are that the legal draft of the Electoral Amendment Bill was handed to the Minister of Home Affairs only on 25 November 2020, but the Cabinet already approved the Ministerial Advisory Report and draft Electoral Amendment bill on 24 November. This makes it impossible to assert that this bill was duly considered, and discussed and that members of Cabinet could have applied their mind. The recommended constitutional certification from the state lawyer was only issued a month later. How is a bill considered or passed without certification, which is one of the many questions?
In common law, section 195(1) of the Constitution, and case law in the 2017 Black Sash v Minister of Social Development requires, the Cabinet members, who stand in a representative capacity, owe a duty of responsibility to the public. The best practice of public administration requires a high standard of profound ethics, promotion of the efficient economic and effective use of resources, accountable administration transparency, reliance on accurate information and applying themselves with a duty of care that will allow them to adjudicate the matter before them.
We deserve better
Truthfully, I cannot believe that our members of Cabinet could allow themselves to tamper and neglect their fiduciary responsibilities in one of the most important and fundamental rights embedded in our Constitution, which is the right to vote.
This is a very dangerous game and a breach of trust of critical importance for holding relationships and systems together. Our country and people deserve better, and we are heading for a disaster. This is why it is not by chance that currently, our more than 77 civil organisations, including religious, business and trade unions, are unsettled, and our objection to the current draft Amendment bill, passed by the standing committee last week, is gaining momentum.
Our voices are not heard and are not taken seriously and we have no alternative but to rely on the courts.
To this end, we have already given legal counsel instructions to prepare papers to take the matter back to the Constitutional Court, applying for a ” declaration of invalidity.”
Much has been communicated regarding the constitutional flaws of the bill and that it will not pass constitutional muster. The voting mechanism and determining of seats is complicated and, because not understandable, will be challenging to be accepted by the public as credible and legitimate. Hence, Valli Moosa’s address and call for civil society to rally and object to the bill.
This leads me to the address of Mr Snuki Zikalala, a representative of ANC veterans, and supposedly of the Home Affairs minister at this weekend’s lecture.
Zikalala communicated to the audience that the Minister asked him to communicate that the ANC currently does not accept the draft Electoral Amendment bill as it stands and is prepared to enter into discussions with civil society about a way forward. Unfortunately, it is was a shock and disappointment that we learnt on Sunday that the Minister denies that he gave Zikalala the mandate to represent him and he is not prepared to engage with civil society as the process is already far advanced.
This is a travesty as the public regard political parties and their representatives as an important national asset, but if they obfuscate their practices, communicate misinformation, and continually spurn public opinion and their relevance, this leads to mistrust, and we are in trouble. This type of action will further alienate voters from political parties and make them seek alternatives.
We are facing a constitutional crisis
The Minister’s decision to not engage or mediate civil society is leading the nation into a constitutional crisis. Even though we are planning to serve legal papers on the President, the Speaker and the Minister on 11 December to declare the draft Electoral Amendment Act as invalid, the matter will not be heard by June 2023 and judgment is only expected in August 2023.
The IEC has communicated it needs 18 months to prepare for elections. All we know as civil society is that we have continuously reached out to Parliament over the years for bona fides comments, and recommend and seek solutions to the current impasse.
It is with this that we advise the Minister and Members of Parliament that we remain ready to talk and again call for an immediate convening of “Electoral Lekotla” to seek a solution together that will support the democratic values of fairness, inclusivity, transparency, and accountability.
We owe it to the people of our country to exhibit the characteristics of “blessed are the peacemakers and reconcilers,” as it is nothing only to do with us, but more for our generations to come.
- Dr Michael Louis is the chairperson of the Independent Candidate Association.
